Representational image.Aadhaar and its alleged surveillance capabilities has been a major subject of dispute among those against and for Aadhaar. In yesterday Twitter Q&A session, the UIDAI however against insisted that Aadhaar is only a tool for identification. Technical experts, on the other hand, have long since been asserting the surveillance capacities of Aadhaar, and this has now taken the kind of affidavits before the Supreme Court from the continuing Aadhaar instance. Moreover, as per the Bench, each technology is capable of abuse, so should not the real solution lie in appropriate laws.

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However, looking at express surveillance technologies, their own installation is subject to multiple procedural safeguards. Privacy offenses through surveillance have never been taken lightly, by the law enforcement or the Courts. Aadhaar, even if it is a surveillance technology, in effect negates all these safeguards developed over the years, and produces a nation-wide, pre-built surveillance program, which is capable of privacy offenses way beyond what the boundaries of a law could shield. The real risks of Aadhaar are defined by what it actually is, and not solely by the intent for which the legislation has created it. It is therefore crucial that the Supreme Court thoroughly evaluates the technology behind the Aadhaar system. If Aadhaar is really fundamentally a surveillance technology, as alleged, then its potential for privacy violations is much larger.

Consider the event of US vs Jones, in which a GPS device installed in a suspect’s car was ruled to be a breach of his privacy. Back in Kharak Singh vs State of UP, Justice Subba Rao spoke of the psychological impact of surveillance on Someone. The US vs Jones judgment, Justice Sotomayor, likewise refers to the precise, thorough nature of a individual’s profile which could be derived from GPS tracking generally and the information derived from it. This includes, for instance, excursions to “the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the marriage meeting, the mosque, synagogue or church, the gay bar and on and on…”. Taking a look at the Indian context, with issues like racism, political institutions, sexual orientation, and health conditions, being highly sensitive problems, brings to light the impact as mentioned in this circumstance, which ‘consciousness that the authorities may be watching chills associational and expressive freedoms’.

Aadhaar, then, would be a case where the GPS has been installed in the name of, say, identifying the owner of the car, rather than expressly stating that it’s for the purpose of surveillance. Just because the law, on paper, supports the GPS for the purpose of identification, but doesn’t stop GPS data from creating a data trail that enables the tracking of a individual, and there is nothing to stop the GPS info from being used as a surveillance technology in the future.

The technical affidavits introduced in the Aadhaar instance, for example, assert that each electronic device has a exceptional ID, and when it is linked with the CIDR, it is assigned another unique ID. Together, these create a distinctive digital path allowing real and non-real time tracking of trades, location and time of Indian residents.

Taking a look at the effect of the surveillance possibility of Aadhaar, the petitioners further argue that the Aadhaar system joins every citizen to an ‘electronic leash’, designed to track transactions across the electronic life of a taxpayer. They assert that the profiling of citizens, their movements and their habits will allow the State to silently affect their behaviour, and also stifle dissent and affect political decision making. They also assert that many state governments have already begun building such profiles of residents.

Having a state installed surveillance program

The impact of state surveillance of a individual, however, is not in issue in this situation. The problem is whether an identification technologies, which the law prohibits from utilizing as a surveillance apparatus, may have the exact same limiting impact. It again comes down to the tech behind Aadhaar, and the extent of the surveillance capabilities of that technology.

Going back to the Aadhaar GPS analogy, the fact is, the psychological impact of a GPS device in your car, doesn’t fluctuate based on whether the unit is actually serving as a surveillance device. If it is a surveillance apparatus, its very presence in your vehicle, the fact it’s a state installed device, and that it could be collecting your data at all points of time, can have the exact same chilling effect on a individual’s freedom. This can lead to people avoiding places that they would normally publicly see. Individuals may even decide to opt out of flying and driving instead. Except that identification a system such as Aadhaar is a surveillance system, you would not have such a choice.

By way of instance, the petitioners in the Aadhaar case argue that every basic centre, like bank account, ration, pension, college admissions, and so on, are connected into the Aadhaar system. If an Aadhaar number is deactivated, they assert, it would make access to each of these basic facilities hopeless, thus making living in society very hard. Opting out of this Aadhaar method to avoid surveillance, would likewise have the exact same effect.

Legal limitations cannot prevent violations

Even limitations imposed under regulations would not prevent the violations that may be possible with such a system. Misuse of a restricted surveillance capacity like that through phone tapping was evident in the PUCL instance. To allow the installation of a nation-wide surveillance system will make its abuse that much simpler, despite any applicable laws. Based on Snowden’s revelations, obviously, no thought was given to these rights.

A new law may easily allow NSA like surveillance

Moreover, if Aadhaar is fundamentally a surveillance technology, then to use it as such, all it might take is for a brand new law allowing the surveillance. From the Aadhaar-PAN judgment, for instance, the Supreme Court explained that there wasn’t anything to prevent Aadhaar, an identification technology, to be used voluntarily for the purpose of getting subsidies under the Aadhaar Act, also mandatorily to get a different function like preventing black money under the Income Tax Act.

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It is equally possible, thus, a new law allows the compulsory usage of Aadhaar technology, to conduct surveillance with the goal of preventing terrorism. Consider, again, the executive arrangement allowing NSA surveillance. A similar legislation may easily permit the use of the pre-built surveillance system to be used especially for surveillance. (Do note that the Supreme Court is to listen to the Aadhaar PAN case connected to if the linkage violates the fundamental right to privacy).

Circumventing procedural safeguards

The fact that procedures established for example time and place of installation, time for which the surveillance is conducted weren’t rigorously followed, were major issues, despite there being a search warrant. The PUCL case, similarly, prescribed a few procedural safeguards to stop the abuse of phone tapping laws.

A significant difference is that these cases dealt with surveillance technologies that has been installed without the individual’s knowledge. The issue of the impact of surveillance, generally speaking, was increased in the U.S. v. Jones case but left unaddressed. The matter of whether a surveillance technology installed together with the person’s understanding but for a purpose aside from surveillance, has exactly the same effect on privacy can also be unaddressed.

Nevertheless, the careful nature with which surveillance technologies happen to be treated, whether through legislation or the courts, is an understanding of this inherently violative character of a surveillance technologies. Putting a nation-wide surveillance technologies, under the pretext of an authentication technologies, does not change the fact that it is the same inherently violative technology. The only effect is that this method effectively circumvents each of the many guards prescribed over the years for the installation of a surveillance technologies.

The least invasive violation of privacy

Whether or not Aadhaar is a surveillance technology will have a major effect in analyzing the extent to which it succeeds, and also in future could violate, the right to privacy. It’s true that even a basic right is subject to constraints, and it may be legally invaded within the boundaries of the law. But even in such a case, surely the least invasive violation has to be chosen.

A demand for an identification technology doesn’t warrant the setup of a nation wide surveillance system. Some thing as inherently violative as surveillance technology calls for the Court’s intervention at its very institution. It is therefore crucial that the Supreme Court go into the technicalities of this tech supporting the Aadhaar system and evaluate the amount of its surveillance potential.

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