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Right to Privacy - What the future holds?

  Supreme Court's decision to hold Right to Privacy as a Fundamental Right is a judgment that will have far-reaching implications. Let's find out if this ruling will mould the evolution of laws and rights around privacy in ways that we are currently in no position to foresee.  

Dr Suresh Srinivasan

In a recent judgment the Supreme Court of India passed a judgment that reiterates the right to privacy as a fundamental right of every citizen. This has a number of implications on some of the major social and technological issues that are playing around us in today's highly connected world.

Be it compulsory enrolment in Aadhaar card scheme or the private information floating around in the public domain through social media forums, certain government bodies and third party institutions make use of such data for commercial purposes. If we take the futuristic view into consideration, the whole phenomenon of artificial intelligence (AI), machine learning, cognitive computing and social media analytics would in fact use the so called private data to much deeper analysis benefiting various governmental and private agencies.

Can private data be used for public purposes?

There have been multiple interpretations as to whether this private data that is procured, can be used for public purposes. The question is if the information that can be sourced, is regulated in some way, can it be used for public purposes? And if yes, then how can we determine the exceptions? And more importantly, are the legalities and interpretation of the constitution clear on these matters? Uncertainties of the implications run rampant, especially since tech companies and data scientists, backed by large corporate, are pouring in millions of man hours and resources in developing these technologies.

The predominant issues in this respect

  • First, commercial entities and corporate are attempting to understand the customers' preferences and needs and are hungry to capture and analyse customer centric 'private' data that could help them precisely position their products or services to such customers.
  • Secondly, the government needs private data to ensure that national security is not breached and for that proactive surveillance is of utmost importance.
  • Third, miscreants, terrorism linked or otherwise, hackers and financial fraudsters look for such private data.

Once, one of the above agencies secure such data, the probability that the other getting hold of the same becomes quite high! Today, 'data brokers' are selling private data like marital status, income levels, phone number, email id, online purchases for ridiculously low rates.

Private data is also being widely tracked by government and other agencies. Today, images, photos, video and satellite tracking systems are quite ubiquitous. Facial recognition, finger printing and biometrics are becoming cheaper and more accurate with every passing day and are being deployed extensively by commercial agencies. The databases of government agencies are exponentially increasing with the size of such data that is ballooning.

What message does the Supreme Court ruling convey?

In the recent judgment of the Supreme Court, the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedom guaranteed by Part III of the Constitution. Although the case was referred to the bench in relation to the Aadhaar card and the legality of using biometrics, this 2017 judgment came in the context of whether right to privacy is a fundamental right and can be traced in the rights to life and personal liberty.

Decisions by courts of law in two earlier cases created a bit of inconsistency on whether the right to privacy is a fundamental right. However, the current 2017 judgment clearly puts to rest such divergences and has reiterated that privacy is a fundamental inalienable right, intrinsic to human dignity and liberty. The judgment also concludes that privacy is a necessary condition for the meaningful exercise of other guaranteed freedoms.

The increasing importance of Aadhaar

With this Supreme Court ruling, although it has not expressly been said that Aadhaar violates the privacy concerns or not, but for sure, it is amply clear that Aadhaar shall have to meet the challenge of privacy as a fundamental right. Institutions like banks and telecom companies are now constantly urging their customers to link their telecom and bank accounts to the Aadhaar numbers. How legal and valid are these directives?

While the issue of Aadhaar card enrolment and linkage to various utility functions continue to be debated, other issues like WhatsApp and Facebook data sharing and the privacy implications of such firms taking advantage of the contents will evolve in the days to come.

It would be interesting to analyse how other larger democracies handle the issues on privacy. The Fourth Amendment of the US Constitution provides some respite, but again from the perspective of the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. The ultimate goal of this provision is to protect peoples' right to privacy and freedom from unreasonable intrusions by the government.

Snowden Saga

Ever since American computer professional Edward Joseph Snowden copied and leaked classified information from the National Security Agency (NSA) in 2013 without authorisation and disclosed the level and depth of the global surveillance by various US and other government agencies across nations, the right to privacy virtually became a joke!

Privacy - what does the future hold?

The digital footprint one leaves in today's environment is quite far reaching. The taxi aggregators know where we are travelling, the Amazons of the world know our purchase patterns, the travel and hotel booking engines know where we are travelling and where we would be on certain days, the browsers know what we glance at all the time. The medical records are well integrated with such information. Aadhaar linked accounts, telephones and property data identify the financial and real estate investments and income tax history. With sensors becoming cheap and the internet of things gaining ground and telematic devices becoming common, there does not seem to be anything close to individual privacy.

With all this, recently major technology companies like Apple, Facebook, Google, Microsoft, Twitter, Verizon, and several other tech companies filed a note to the US Supreme Court urging the highest judicial authority to take a relook at the privacy protections of consumers by changing the way the Fourth Amendment is applied, specially with respect to the merging internet based technologies. These companies have neither been recommendatory not advisory but have requested that they be consulted in such a far reaching social cause.

It is for sure that more and more commercial entities want to understand customer preferences better and will go behind customer centric 'private' data; to their fortune, current technologies, cloud computing, big data and high end analytics will help them do this better and better, with every passing day. The governments, around the world will get jittery against terrorist organisations and will strive to ensure national security at any cost.

Miscreants, terrorism linked or otherwise, hackers and financial fraudsters are also not going to give up and will continue to be ahead of the curve in accessing private data. Corporate and data scientists will continue to mine high level of private data, and this will only increase with every passing day!

Hence, in effect, securing the right to privacy of individual citizens in all probabilities will only be next to 'impossible'. In such interesting times, it will be really challenging to see how there can be a balance between government's action in whatever they do, and people's right to privacy.

How are global and Indian automakers looking at EV?

Tesla is considered to be best positioned in the EV space; however its total sales at this point in time is less than one lakh cars per annum. The Chinese EV maker is selling more than a lakh of units per annum and is growing fast.

Nissan Leaf is selling more than one lakh twenty thousand cars per annum.

Maruti Suzuki and Toyota
Maruti Suzuki, the largest passenger car-maker in India with a 50% market share believes that its alliance with Toyota could provide it the necessary access to the EV technology which Toyota is working on.

Ford and Mahindra
Ford for example has come together with Mahindra recently to strengthen the EV capability and take the same to international markets. Mahindra acquired Reva, the electric car, a few years ago, and has been experimenting in the EV space since then.

All EVs by 2030 – How can India achieve this target?
First of all the message is clear; and the target can help the country move in the right direction. Many of the Indian cities are polluted beyond global norms. Auto industry and the vehicular pollution that commences from it is one of the major causes for this. EV is a great solution, but today what is the reason because of which the EV sales  have not looked up considerably over the years?

Largely driven by battery costs, EVs are way more expensive than petrol cars and naturally, this is the first and foremost reason why EV sales have not caught up. The other reason can be that the problems of global warming do not majorly affect people in general and so they opt for petrol cars over EVs.

Government incentives
The government has launched National Electric Mobility Mission Plan, 2013 (NEMMP) and Faster Adoption and Manufacturing of Hybrid & Electric Vehicles, 2015 (FAME). These help to set quite ambitious targets. However many regulations on ground need to be strengthened and that will move the country towards the required preparedness. Policies for discouraging older traditional IC cars and incentivising EVs need to happen.

Government needs to provide incentives to EV purchasing consumers and battery manufacturers. Incentivising imports of crucial commodities and components required for the batteries are critical. Incentives are also required when it comes to  taxes and in terms of soft loans to customers.

The United States of America for example, is subsidising around 18% of the total EV value.

China at 23% and countries like Norway and Denmark are subsidising as high as 45% of the vehicle cost. India needs to make budgetary provisions to subsidise at such levels to make the EV proposition attractive to customers and the industry!

Fall in global battery costs
The battery costs globally are dropping. From around $150/kWh, the price is expected to fall to around $100/kWh in the coming 8 to 10 years. Once this happens the market share of the EVs could sharply increase from the current 1% to around 10% in a few years. In spite of such a steady drop in battery cost over the last few years, they are still expensive. Today, they account for around 35%-50% of the total vehicle costs.

Infrastructure facilities for car charging
Further infrastructure facilities for charging are also sparse. Less than 300 community charging stations are currently in operation. In India passenger car EVs today can travel a maximum of around a hundred kilometers. This can significantly increase the ‘range anxiety’ of Indian drivers, which can be a major bottleneck to purchase an EV. The government also plans to set up a lithium-ion battery-making facility under Bharat Heavy Electricals.

All said and done, India needs to move towards building standardised and exchangeable batteries to bring down the costs. And to achieve that, these things are crucial:

  • Penetrating battery charging infrastructure is extremely critical.
  • Regulations and guidance for favourable tariff structures for charging vehicles is also important.
  • Large scale battery manufacturing plants need to be commissioned.
  • Increasing subsidies on EV batteries in order to converge the vehicle cost to the conventional models.