Data theft: When SC raised concerns over big data in right to privacy judgment

At a time when the focus sharpens on collection of data and its use in the backdrop of the Facebook data breach, it is worth noting that the Supreme Court had, in its historic judgment that classified privacy as a fundamental right, raised issues of state and non-state actors using data in ways that amounted to invasion of privacy of the citizen and creating a big-brother-is-watching-kind of a scenario.

“Knowledge about a person gives a power over that person. The personal data collected is capable of effecting representations, influencing decision making processes and shaping behaviour. It can be used as a tool to exercise control over us like the 'big brother' State exercised. This can have a stultifying effect on the expression of dissent and difference of opinion, which no democracy can afford,” Justice Sanjay K. Kaul wrote in his privacy judgment delivered on August 24, 2017.

The growth and development of technology has created new instruments for the possible invasion of privacy by the state, including through surveillance, profiling and data collection and processing, Kaul wrote in the judgment. “Surveillance is not new, but technology has permitted surveillance in ways that are unimaginable,” he said.

The state, he said, could use data for profiling of citizens, which can be used to further public interest and for the benefit of national security, but which can also result in discrimination based on religion, ethnicity and caste.

Further, he said, in the digital age, individuals are constantly generating valuable data which can be used by non-state actors to track their moves, choices and preferences. “Social networks providers, search engines, e-mail service providers, messaging applications are all further examples of non-state actors that have extensive knowledge of our movements, financial transactions, conversations—both personal and professional, health, mental state, interest, travel locations, fares and shopping habits,” Kaul wrote.

These digital footprints and extensive data, wrote the SC judge, can be analysed computationally to reveal patterns, trends and associations, especially relating to human behaviour and interactions and hence, is valuable information. “This is the age of 'big data'. The advancement in technology has created not just new forms of data, but also new methods of analysing the data and has led to the discovery of new uses for data,” Kaul wrote.