Shashwat Anand, a practicing Advocate of the Supreme Court of India, discusses India's Aarogya Setu contact tracing app...
The British Mathematician, Clive Humby once famously said, “Data is the new oil.” He used it as a metaphor to explain that data is a resource, just like oil, that is useless “unrefined,” but once it is “refined” (mined and analysed), it creates enormous value. A lot of information can be extracted from data just as energy can be extracted from oil.
The Aarogya Setu App was launched by the Government of India on 2nd April, 2020, purporting to be a COVID-19 tracking App, which seeks personal information ranging from basic contact details to profession, to full blown access to Bluetooth and GPS. As per Central Govt. claims and according to several proponents of the App, Aarogya Setu is supposedly a COVID-19 “contact tracing” App, but that is far detached from the reality. The App works by collecting information through a “symptoms and exposure” quiz and estimates degrees of risk of contracting COVID-19, accordingly.
It is obvious that the App largely excludes tracking and identification of asymptomatic COVID-19 patients, which comprise more than 80% of the total COVID-19 cases. Mass testing is indispensable while India’s testing rates are among the lowest in the world (at around a total of 0.37% tests conducted on a population of 1.38 Billion Indians). This is evinced by the fact, that amidst the nation-wide lockdown since 25th March (after the one-day Janta Curfew on 24th March) when the tally of confirmed COVID-19 cases was 562, the number of COVID-19 infected persons exponentially increased to more than 277,000 confirmed cases, despite the ongoing lockdown.
The App is purported to be floated on an “as-is” basis and despite the Government’s claims that the App “cannot be hacked,” “Elliot Alderson“, an unidentified French ethical hacker not related to American TV character of the same name, and more recently a separate Bengaluru-based techie, hacked into the app, laying bare the fact that the data contained in the App is vulnerable and susceptible to hacking, misappropriation and misuse.
Interestingly, as per the Terms of Service(ToS) of Aarogya Setu, the services provided by the App “are not a substitute for common prudence, medical diagnosis, or specific therapeutic and epidemiological measures necessary to combat COVID-19.” The ToS further provides, that the Government will not be liable for “any unauthorized access to your information or modification thereof.”
Thus, it is clear that the Aarogya Setu does not detect/diagnose COVID-19. However, the reasons and intentions behind the App in its present form are best known to the Central Government. What it does is “Exposure Tracing” at best, as “Contact Tracing” is an epidemiological measure and a facet of the medical and healthcare field.
The Data Protection Bill, 2018 in India is based on the recommendations of the B. N. Srikrishna Committee Report and framed under the direction of the Supreme Court of India in the Adhaar Case (Justice K.S.Puttaswamy (Retd.) & ANR. v. Union of India & ORS.), is still pending in the Parliament to date. Furthermore, recently, (Retd.) Supreme Court Justice B. N. Srikrishna himself thrashed the App in a webinar, stating that the App will end up causing more harm to the citizens, than good .
The Supreme Court has laid down the test of “reasonableness, necessity, and proportionality,” in assessing the constitutional validity of the infringement of Right to Privacy. The Apex Court’s Aadhaar Judgment, and other judgments on the Right to Privacy provide that it is a fundamental right, and although not an absolute right, cannot be curtailed or interfered with “except according to procedure established by law.”
Notably, the Aarogya Setu App is not backed or mandated by any law. Thus, its imposition, in any way, is wholly arbitrary and unconstitutional, much less, through unwarranted and illegal executive instructions, as is the App an invasion into the privacy and a tool for prying and mining the data of the individuals.
Admittedly, for the people charged with tracing and tracking COVID-19, surveillance systems are crucial, so we must make an intentional and voluntary sacrifice of our privacy and allow some of our movements to be tracked for the common good of the public at large. But, new hi-tech surveillance in the Digital-Age has ushered in fears of the other kinds of surveillance.
We’re hitting walls of skepticism and mistrust, because the Government has failed over past years to create the requisite infrastructure, institutions, legislation, regulatory mechanisms and safeguards that would win our trust in this increasingly invasive world. However, there are hardly any substantial efforts made by the State to earn the people’s confidence.
The COVID-19 pandemic brings us a window of opportunity, to reassert proper regulations over the Age of Information and Communications Technology, in the backdrop of the Prime Minister’s commitment to heralding the move towards Digital India. As the State owes a responsibility to the society, as well as, to the privacy of the individual, both of which can be balanced and harmonized. As a matter of great concern, the thin-line between voluntary and mandatory, and between privacy-protecting and privacy-invading, has now begun to diminish and blur and shall go on to have grave long-term consequences.
Without this discourse, the new world and the digital-age present the risk of becoming a glass-house, whose see-through walls would allow too much exposure to the light of ubiquitous surveillance and public scrutiny, thus, scorching our private-selves, and in doing so, would arrest and encumber the organic growth and development of the “inviolate personality,” which requires shade and shelter in which to flourish.
At this pace, with the evolution of Big Data and mass surveillance systems, our future generations run the risk of inheriting a mangled world, with a marred and depleted ecosystem for the cultivation of the human ‘Self’ and personality; where everyday, a little bit more of our private lives and our inner selves is laid bare, out in the aether, defenceless to exploitation and abuse.
For more on COVID-19, see our special coverage.
Shashwat Anand is a practicing Advocate of the Supreme Court of India and the High Court of Allahabad. Shashwat has appeared in numerous constitutional matters and is a graduate of the B.A. LL.B (Honours) 5-Years Integrated-Law Course of the Faculty of Law, University of Allahabad.
Suggested citation: Shashwat Anand, The Enigma of India’s COVID-19 App, JURIST – Professional Commentary, June 18, 2020, https://www.jurist.org/commentary/2020/06/shashwat-anand-covid19-app/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at firstname.lastname@example.org
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