Surveillance after the Aadhaar judgment: What Internet freedom?
By failing to deal vigorously and simply with this point, the majority judgments distort all the arguments about proportionality that follow in their later stages. Proportionality cannot be calculated by throwing out all the really important weights on the scale.
In order to resolve any of the issues’ proportionality, the Court must first address and decide whether that claim is justified.
In upholding the constitutionality of the Aadhaar Act, the Supreme Court’s judgment repeatedly refuses to come to grips with the issue of surveillance. In K.S. Puttaswamy v. UoI, the Court recognised a fundamental right to privacy that limits every governmental act, by requiring, as the Court now says, at a very minimum a reckoning of the proportionality of the incursion on the right against the public objective to be attained. The heart of the primary claim against the Act’s constitutionality is that the Aadhaar architecture enables a form of comprehensive societal surveillance by future governments that exceed the ambitions of all past forms of despotism.
In order to resolve any of the issues’ proportionality, the Court must first address and decide whether that claim is justified. If it is justified, or if it is merely probably justified, then the Act is surely unconstitutional under the three-part test laid down by the Right to Privacy judgment. Or there is no societal objective served by Aadhaar that could be said to be proportional to the immensity of such a failure. But this inquiry the Court is determined not to conduct. Instead, it indulges in several basic obfuscations and refuses to address the criticisms put by Justice Chandrachud in his dissent.
The court says, first and fundamentally, that the Aadhaar identity collection and authentication systems cannot be used to bring about a condition of intolerable societal surveillance because the UIDAI does not collect or retain information about the *purpose* of any of the billions of authentication inquiries it is designed to handle. Because UIDAI does not collect information about *what* an authentication occurring at any individual time and place is *for,* the Court says, the Aadhaar architecture isn’t spying on everything we do.
This is such a fundamental fallacy that it approaches prevarication. The government can through the statute access Aadhaar data, which it then can combine with all the other forms of behavioural and transactional data it, or any private party subject to government compulsion collects throughout the society. Aadhaar data say *who* was involved at any particular time and place recorded by its system, did or was involved in *whatever* other data available to government otherwise describe. Aadhaar data is what makes it possible to relate all other transactional and behavioural data to bodies, to *attribute* (as the intelligence services say) every social action to some particular persons.
Universal *attribution* allows everyone to be responsible for government power for every action. This is the perfection of despotism, the official goal of the government of China under the present control of the Chinese Communist Party: a recipe for the most totalitarian government in the history of the world. It is incompatible with democracy and respect for fundamental human rights. In order to be constitutional, the Aadhaar Act must require a mixture of technological and legal constraints that prevent the system from permitting the government to attempt universal attribution.
This is what Justice Chandrachud means in his dissent when he says that Aadhaar is the “bridge” among all the data “silos” in government. The majority judgments—apparently concentrating only on the “silo” represented by the slide deck of the UIDAI CEO, which fails to explain the role of Aadhaar in providing the layer of identity linkage for all other forms of government surveillance and market data-gathering—simply refuses to see the point.
By failing to deal vigorously and simply with this point, the majority judgments distort all the arguments about proportionality that follow in their later stages. Proportionality cannot be calculated by throwing out all the really important weights on the scale.
But something even more serious is destroyed in the process. The court’s wilful refusal to look at technological facts prevents the Indian people from understanding the fate of their privacy rights in the Digital India of the future. Because the court refuses to endorse the spread of mandatory Aadhaar enrollment and use outside the social benefits paid out of the Consolidated Fund without further legislation, it will be Parliament, not the Court, that determines whether Aadhaar will become the golden link in the chain of despotism. But by writing with such endless diffuseness and by refusing to address the central issue concerning surveillance, the Court is depriving Indians of the counsel and wisdom it owes them. As elections approach and Parliament considers “data protection” legislation that will determine the fate of Internet freedom, this becomes urgent. This isn’t all: beyond India’s borders the court is turning out its lamp, the one that should have illuminated these issues for the world’s other democracies.
Mishi Choudhary is Legal Director at Software Freedom Law Center; Eben Moglen is a professor of law and legal history at Columbia University, and is the founder, Director-Counsel and Chairman of Software Freedom Law Center.
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