1. INTRODUCTION
“I’m willing to sacrifice all of that because I can’t in good conscience allow the US government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they’re secretly building.”- Edward Snowden, former NSA official
Former Brazilian President Dilma Rousseff strongly criticized the United States in September 2013 after it was discovered that the National Security Agency (NSA) of the United States had been spying on her, also on Brazilian citizens and the state oil corporation Petrobras.
The above discovery was due to former NSA employee Edward Snowden exposing the mass surveillance program of the NSA which was later called illegal by the US courts. President Rousseff cancelled a visit to the United States in protest subsequently. Source info here.
In her speech one key point what the President raised was that the argument that intercepting information through surveillance helps protect against terrorism cannot be sustained. She emphasized that Brazil knows how to protect itself.
As governments are making national security arguments to intercept data, technology companies are resisting such moves citing the violation of the right to privacy.
This blog will focus on the right to privacy of individuals and try to examine the key question of the right to privacy vs national security and what is the way out.
2. EDWARD SNOWDEN EXPOSES NSA SURVEILLANCE
The NSA has the greatest surveillance capabilities in American history... The real problem is that they are using these capabilities to make us vulnerable- Edward Snowden, Former NSA official
Edward Snowden through his NSA leaks exposed that the United States National Security Agency was conducting mass surveillance of American phone records. A US Court in 2020 called the program unlawful and made a remark that it may have been unconstitutional. Source info here.
Before Snowden’s expose, the NSA denied any such operation but later admitted it was being done to protect against domestic terrorism.
This raises serious questions as to how can anyone government ensure the security and safety of its people without compromising on the Right to Privacy?
Let us look below at two major case studies on the Privacy question and let us try to answer the above question.
3. APPLE REFUSES TO UNLOCK iPHONE
"The government says: 'Just this once' and 'Just this phone.' But the government knows those statements are not true; indeed, the government has filed multiple other applications for similar orders, some of which are pending in other courts. ... If this order is permitted to stand, it will only be a matter of days before some other prosecutor, in some other important case, before some other judge, seeks a similar order using this case as precedent."- Apple
San Bernardino shooting was a major terrorist attack in California, United States where 14 people were killed and 22 were injured. Both the suspects who were responsible for the attack were killed as well.
Fortunately, one of the attackers’ iPhones was discovered, and the FBI made a request to Apple to help unlock the iPhone so as to get more information about the attacker and other possible accomplices.
However, Apple refused to state that they cannot violate their user’s privacy. Tim Cook, CEO of Apple, clearly stated that the government’s demands were a chilling breach of privacy. Source info here
This became a major issue between the United States government and Apple where Apple refused to compromise on the user’s privacy.
4. WHATSAPP ENCRYPTION ISSUE IN INDIA
If We're Told to Break Encryption, WhatsApp Goes – Statement by WhatsApp
In India, Meta owned WhatsApp faced a similar issue whereby WhatsApp clearly told the Delhi High Court that if end to end encryption is broken then WhatsApp will have to cease operations in India. Source info here
End-to-end encryption simply means that the messages cannot be read by third parties including WhatsApp.
WhatsApp and Facebook challenged the 2021 IT rules for social media intermediaries applicable in India whereby it requires the messaging apps to trace information and find out the first originator of the message.
The government argues it is important to find out who sent the first message, as in cases of communal violence it is critical to identify the originator of the message to fix the responsibility and accountability.
5. RIGHT TO PRIVACY NOT ABSOLUTE?
“Privacy is rarely lost in one fell swoop. It is usually eroded over time, little bits dissolving almost imperceptibly until we finally notice how much is gone.” ― Daniel J. Solove, American Law Professor
If we look at both cases, there is an existing conflict between the government and the technology companies over how much privacy an individual needs.
Can National Security needs trump privacy of individuals?
Both the US government and Apple had a fair point when they conflicted on the issue. As the US wanted to ensure protection of its citizens from future terrorist attacks. What if the San Bernardino shooter had contacts or conversations with other terrorists which if the phone would have been unlocked, the FBI could have easily traced them and protected America from possible further attacks.
However, Apple also as a service provider could not violate user privacy, for instance if they unlock someone’s iPhone then other users may also feel that their phones may also be unlocked for some reason in the future.
If Apple unlocks an iPhone for a user, they might get further requests to unlock many iPhones of people that could be just based on suspicion, so where does this all stop?
Coming to India, where WhatsApp is fighting a similar battle however both the Indian Government and WhatsApp have a fair point to make.
Indian government similarly wants to ensure security for all its citizens from terrorist attacks, communal violence etc. and hence wants the originator of the information to be traced.
However, WhatsApp feels that to do that encryption will have to be broken and that will violate their users’ right to privacy.
Also, there is a risk that the user’s encryption could be broken over mere suspicion or political speech could be traced.
The above scenarios clearly show that there is a need for discussion at all levels to strike a balance between national security and privacy requirements. It is not possible to discount either of them.
The Indian Supreme Court has tried to address the question on limitations when it comes to the right to privacy as the Honorable court in context of a surveillance issue stated that any restrictions imposed on the Right to Privacy must necessarily pass constitutional scrutiny.
This approach by the Indian Supreme Court may work as a possible solution for an Indian context however we have seen in the past how Apple pledged to fight the US Federal Court order requiring Apple to unlock the iPhone of the terrorist killed in the San Bernadino shooting leaving us with an open question that a one size solution is still far away.
6. CONCLUSION
Privacy is a valuable right and all individuals cherish it. However, when it comes to National Security requirements, can we still say Privacy is absolute?
This is a difficult question to answer currently, as it is difficult to say whether exceptions can be made to Rights individuals currently posses or not.
The Indian Supreme Court requiring constitutional checks for restriction of rights may be an option however in a larger context of the world we operate on it might not be that effective as seen with the US example earlier.
Hence, till we are able to find a solution for this ongoing debate, it is critical to think in terms of what is the best outcome for all, before taking a decision.
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