By Eben Moglen and Mishi Choudhary
Last week’s arguments before a nine-judge constitutional bench of the Supreme Court, which is at long last deciding whether Indian citizens have a fundamental right to privacy, have established two realities clearly. First, the judges see the profound importance of any decision to create such a fundamental right. Second, they would like to know just what the outlines of this right should be.
Privacy is, as Brandeis and Warren said in 1894, “the right most valued by civilised men”, “the right to be left alone”. But in our age, the age of the internet, the right to be left alone includes also the right not to be put out there, or exposed involuntarily. Forced disclosure of the information that comprises our identities, in the age of biometric identification, social profiles, and cashless economic transactions, damages an essential component of all personal liberties. Whether the individual’s information is used on its own, or is analysed, profiled, or linked in the “social graph” to that of other related persons, forced disclosure of personal information in today’s society creates power in the state which receives that information.
Not all of the constitutional right of privacy cases in the age of the internet will involve forced disclosures. The cases that will matter most, should the court decide in favour of the fundamental right, will be where the government imposes a form of disclosure that, like limitations on physical movement, inhibits the “ability to be oneself”.
In these cases, the court would find that the fundamental right to privacy is infringed when forced disclosures of personal information to government interfere with the exercise of any of the freedoms the Article 19 protects, when you cannot actually…