By Eben Moglen and Mishi Choudhary – 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 civilized 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 analyzed, 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.
The importance of a fundamental right in our system is that it can only be enforced against the state. “Platform” social media companies receive voluntary disclosures of personal information in immense quantities every minute, but they are not subject to constitutional controls.
Moreover, though these corporates are indeed ubiquitous in our lives, they are not obligatory. In dealing with them, we still have choices. Only the power of the state can, in fact, compel us to expose ourselves more fully than we choose to do. The state can as well, of course, legislate to protect our privacy against private parties, and should do so.
India will, as a result of the Supreme Court’s judgment, take the lead among democracies in recognizing and enforcing its citizens’ fundamental right to privacy, or fall in line behind despotic societies in destroying it. more> https://goo.gl/WXWbzf