WhatsApp row: On secrecy, privacy & property

Rahul Gandhi had alleged, during last week’s doomed-from the-start no-confidence motion in Parliament, that corruption in the 2016 agreement signed by the Narendra Modi government to purchase 36 Rafale fighter jets from France had forced defence minister Nirmala Sitharaman to backtrack from her assurance to disclose details of the price of purchase.

The matter could have been ended by Ms Sitharaman admitting that being new, she had overlooked the confidentiality clause - a plausible explanation since military purchases are a tough, black box to unravel. Instead, the government chose to hit back by pinning the blame on a 2008 bilateral security agreement signed by the then UPA government with France. This needed both parties to protect classified information which could compromise the security and operational capability of the defence equipment of either.

It is quite a stretch to argue that keeping the price paid a secret meets the test of “necessity” or “proportionality” which guide how much a citizen’s right to know can be restricted. The Chinese or the Pakistanis couldn’t care less what the Indian taxpayer shelled out for the fighter jets.

They likely already know the specifications of our purchases. Also, corruption can’t be lightly presumed to be the reason why Ms Sithraman backtracked. Yet, this unresolved debate will hang like an ominous cloud as the counter to the BJP’s allegations of corruption during the UPA government.

Privacy is to individuals what secrecy is to the State.  The debate on privacy got a fillip by the recent arraignment of WhatsApp for being the conduit of fake news, which incited vigilante violence.

WhatsApp encrypts content in its pipes end-to-end like no one else. Complete secrecy attracts 1.5 billion active monthly users and 60 million messages per day. Its end-to-end encryption cannot even be decrypted by its own administrators. This rabid commitment to secure the privacy of its users doesn’t align with the extant law and is as over-the-top as is our government’s thirst for secrecy. The fundamental right to privacy is restricted by other fundamental rights, including those embedded in Article 21 of the Constitution of India, to which privacy was also mapped by the Supreme Court in 2017.

WhatsApp is a precursor of what could happen if the “dark web” becomes the norm. If crypto currencies are allowed to subvert a sovereign’s power to issue currency and bury crime-related financial transactions underground, catastrophe beckons. WhatsApp managers initially expressed technological helplessness to regulate the unsavoury use of its technology. They are now making conciliatory noises with an eye to their bottomline. Non-compliance could jeopardise their application for adding-on a payments app in India.

Why has WhatsApp been allowed to linger on and not simply told to shut shop, as is China. The bottom-up view is that encrypted communication has wide appeal across political parties and individuals. We all have secrets.

WhatsApp democratises the power to have secrets, unlike the Official Secrets Act 1923, which locates this power only within the State. WhatsApp allows everyone to have secrets. This suits freewheeling democratic India.The last word on the privacy of digital data will be from the Justice B.N. Srikrishna Committee on data protection. This committee, appointed in August 2017, has worked in unprecedented grand isolation. Presumably, things have been decided behind closed doors and the collective wisdom will be revealed in due course.

But in chaotic India, surprises are routine. Days before the report was to be submitted, the Telecom Regulatory Authority of India (Trai) published, on July 16, 2018, its recommendations on privacy, security and ownership of data. The Trai recommendations are unlikely to make the committee pause and think again. It is already broadly agreed that the individual’s ownership of data is paramount.

But both the right to privacy and the right to property over data are restricted. If the necessary safeguards exist to mask sensitive and personal information, the plea of privacy loses force for denying access to data, at least to the State.

Artificial intelligence requires masses of data to train machines to think and behave better than humans. Anonymised data aggregated across a large number of individuals is more valuable than oil, in order to understand and predict contextual human behaviour.

The right to deny or withdraw access to anonymised data, despite adequate masking safeguards, can be viewed as anti-development and also at a stretch anti-national. At the very least, denying or withdrawing access to anonymised data should attract a cost to be paid, since it amounts to “free riding” on the technological benefits gained by others providing their anonymised data.

Trai has ignored the need for a market to price data access. A market exists even today. But it is an informal and non-transparent market which hurts the commercial interests of the individual data owner and puts the controller or processor of data in the driver’s seat.

This information asymmetry must be removed through appropriate institutional development to ensure that individuals are not shortchanged and have to sell their data cheap - much like innocent tribals selling their land for peanuts.

We have neglected the property rights aspect of data management. Civil society mostly focuses on safeguarding the privacy aspect of data management. There is a reason for this. Unlike privacy, the right to property stopped being a fundamental right in India in 1978. This makes it difficult to challenge laws infringing on property rights.

The higher judiciary has been indulgent in admitting public interest litigation challenging laws threatening fundamental rights like privacy. Privacy rights also align with the need to decriminalise gay sex. It is an emotive issue.

In comparison, a right to property seems almost crass, where 60 per cent of people own no land or electric/electronic consumer durables; 40 per cent of households have just one room and can fit their possessions into a gunny sack. But make no mistake. Socialism erred in hiving off the right to property from human rights. Property is intrinsic to the right to privacy. But we will keep arguing till we fix this error, eventually.