Indian civil society were in full swing celebration after the land mark judgement of Highest Court of Land in Right to Privacy question. on 24th August the Indian Supreme Court’s nine members Constitution bench which was presided by CJI Khehar unanimously ruled that Right to Privacy is the Part of Fundamental Right guaranteed under Part 3 of the Indian Constitution and tagged with Article 21 of the same. In spite of this merry Wiki Leaks striked with new cables which allege that central intelligence agency (CIA) might stolen 1.2 Million Bio-Metric data of Indians.
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Wikileaks new Cables about CIA and Aadhaar Data Leakage
On 24th August wikileaks published new cables regarding ExpressLane Project by CIA through its liaison companies. Indians are the one of major victim of this ExpressLane Project because CrossMarch is one of the initial Digital Equipment Provider (DEP) in Aadhaar Project. WikiLeaks Cables says that “ These documents show one of the cyber operations the CIA conducts against liaison services — which includes among many others the National Security Agency (NSA), the Department of Homeland Security (DHS) and the Federal Bureau of Investigation (FBI).The OTS (Office of Technical Services), a branch within the CIA, has a biometric collection system that is provided to liaison services around the world — with the expectation for sharing of the biometric takes collected on the systems. But this ‘voluntary sharing’ obviously does not work or is considered insufficient by the CIA, because ExpressLane is a covert information collection tool that is used by the CIA to secretly exfiltrate data collections from such systems provided to liaison services. ExpressLane is installed and run with the cover of upgrading the biometric software by OTS agents that visit the liaison sites. Liaison officers overseeing this procedure will remain unsuspicious, as the data exfiltration disguises behind a Windows installation splash screen. The core components of the OTS system are based on products from Cross Match, a US company specializing in biometric software for law enforcement and the Intelligence Community. The company hit the headlines in 2011 when it was reported that the US military used a Cross Match product to identify Osama bin Laden during the assassination operation in Pakistan”. Cross Match was one of the first multi-national Bio-metric Service Provider had secured the approval of UIDAI for the collection of Bio-Metric data of the citizens in the country in Aadhaar Scheme. On 2011 October Company had bagged the said approval and on September 2010 company received Provisional Certificate for use of UID program. GGI News Reports thatIn 2012, Francisco Partners acquired Cross Match Technologies Inc. Infamous Israeli Cyber Weapon group Called NSO is the one of portfolio company of Francisco Partners. This Multi-Giant links will helps to determine the depth of Multi Billion Dollar Industry of Bio-Metric. GGI News adds as per the new analysis by the research and market India’sBio-metric Market will hit by $2 Billion in 2018. Cross Match’s Indian partner is a Noida based Smart id. Since 2014 Smart id had carried out Bio-Metric Data Collection of 1.2 Million Peoples of the country. As per Wiki Cables these 1.2 Million Bio-Metric Data is now with CIA.
USA Patriot Act and Privacy of Individuals Around the Globe
The September 11, 2001 terrorist attacks prompted congressional action on many fronts, including passage of the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT)Act. After the enactment of said act by Bush Administration, people outraged around the world and made protests against the unilateral movement by US Government. Many of provisions in the Patriot Act will curtail the privacy of individuals as well as American Citizens and others around the world. According to Patriot Act the Organizations within the states are bound to share their Cloud,Centralized Data Servers and other tangible and intangible sophisticated documents with federal agencies like NSA,FBI etc. Title II of the Act, Enhanced Surveillance Procedures, includes provisions that affect monitoring of Internet activities. Section 210 expands the scope of subpoenas for records of electronic communications to include records commonly associated with Internet usage, such as session times and duration. Section 211 clarifies that cable companies offering Internet services are subject to 18 U.S.C. ch. 119 (Wire and Electronics Interception and Interception of Oral Communications), 18 U.S.C. ch. 121 (Stored Wire and Electronic Communications and Transactional Records Access), and 18 U.S.C. ch. 206 (Pen Registers and Trap and Trace Devices)in their provision of those services. Cable companies had sought, in particular, to clarify their obligationswith regard to release of personally identifiable information about subscribers and whether they were required to notify the subscriber that the information had been requested by a governmental entity as required under the 1992 Cable Act. Under this section, no notification is required, but disclosure specifically does not include a subscriber’s video programming choices. Peter Swire, who served as privacy counselor at the Office of Management and Budget during the Clinton Administration, worries that the Act does not include sufficient provisions to deal with potential abuses by law enforcement of the new authorities granted in the Act. Title II of the Patriot Act, “Enhanced Surveillance Procedures,” expanded the reach of FISA ( Foreign Intelligence Surveillance Act) Court Orders to allow the FBI to obtain “an order requiring the production of any tangible things (including books, records, papers, documents and other items) for an investigation to protect against international terrorism and clandestine intelligence activities.”
How did Indians reach in this Land Mark Judgement over Privacy and What is Next ?
In 2015 during Aadhaar petition J. Chelameswar’s 3 members bench struck on Kharak singh and M.P Sharma Case precedents,and they directed the question whether Right to Privacy is Fundamental Right or not to Constitution bench. CJI has the duty to constitute constitution bench but Honorable court sit idle. After 2 years gap again Aadhar petitions came before J Chalameswar’s bench and bench requested petitioners and Union of India to mention it before CJI seeking setting up of the Constitution Bench at the earliest, so as to decide the main matter referred to it in August 2015 . Then CJI constituted 5 members constitution bench in July. The first day of argument The Attorney General for India pointed that the existence of a fundamental right of privacy is in doubt in view of two decisions : the first M P Sharma v Satish Chandra, District Magistrate, Delhi was rendered by a Bench of eight judges and the second, in Kharak Singh v State of Uttar Pradesh was rendered by a Bench of six judges. Each of these decisions, in the submission of the Attorney General, contained observations that the Indian Constitution does not specifically protect the right to privacy. On July 18 CJI JS Khehar constituted nine members constitution bench to decide whether Right to Privacy is Fundamental Right or not. Now 9 bench over ruled precedent cases with upholding J Subba Rao’s minority Judgement in Kharak Singh and marked Right to Privacy as fundamental Right. Now this unanimous judgement by constitution bench will help in Aadhaar Matter (J.Puttaswamy (retired) & Ors v Union of Inida) which is going to be start on September 5 before J Chalemeswar’s bench. It is the duty of respondents ( Central and other respondents like UIDAI,TRAI etc) to prove Aadhar doesn’t invade privacy and for now Petitioners have edge in Aadhaar Case. The impact over Right to Privacy Judgement don’t settle within the contours of digital privacy in modern era and will percolate into other infamous Statutes which prevents Cow slaughter across the various states in the country and Sections like 377 in Indian Penal Code.
“Privacy, in its simplest sense, allows each human being to be left alone in a core which is inviolable. Yet the autonomy of the individual is conditioned by her relationships with the rest of society. Those relationships may and do often pose questions to autonomy and free choice. The overarching presence of state and non state entities regulates aspects of social existence which bear upon the freedom of the individual” these are the words of J DY Chandrachud from the recent Judgement on Privacy. Here court clearly affirms that Right to Privacy is an inalienable right of citizen under Indian Constitution. Through this land mark verdict by Supreme Court of India protected Individual Privacy is under Part III of the Constitution. This will allow the peoples to seek Constitutional Remedies through Article 32 and 226 respectively in Supreme Court and High Court. The revelation by Wiki Leaks is again unveiled the vulnerability of centralized Bio-Metric Data System and interest of Private players in the largest Bio-Metric project of the world. Privacy is an inevitable element for the bodily integration of individual and any act to derogate the right will be the catacomb of physical existence.
(Author is a Law Student in Government Law College, Thrissur , Kerala and member of Citizen Collective for Digital Rights and Privacy)
Reference :
- Marcia S. Smith, Jeffrey W. Seifert, Glenn J. McLoughlin, and John Dimitri Moteff : Resources, Science, and Industry DivisionThe Internet and the USA PATRIOT Act: Potential Implications for Electronic Privacy, Security, Commerce, and Government
- Swire, Peter. If Surveillance Expands, Safeguard Civil Liberties. Atlanta Journal-Constitution op-ed, October 21, 2001
- https://www.mayerbrown.com/publications/the-usa-patriot-act-and-the-privacy-of-data-stored-in-the-cloud-01-18-2012/
- https://wikileaks.org/vault7/#ExpressLane
- www.livelaw.in
- JUSTICE K S PUTTASWAMY (RETD.) AND ANR V UNION OF INDIA AND ORS WRIT PETITION (CIVIL) NO 494 OF 2012
- http://gginews.in/cia-spies-access-aadhaar-database/