Representational image.Aadhaar and its alleged surveillance abilities has been a major subject of dispute among those against and for Aadhaar. In yesterday’s Twitter Q&A session, the UIDAI yet against insisted that Aadhaar is only a tool for identification. Technical specialists, on the other hand, have long since been asserting the surveillance capacities of Aadhaar, and this has now taken the form of affidavits before the Supreme Court in the continuing Aadhaar instance. The Bench, however, expressed some apprehensions regarding the extent to which they can go into highly technical details of the Aadhaar system. Moreover, as per the Bench, each technology is capable of misuse, so should not the real solution lie in appropriate laws.

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Nevertheless, looking at even state surveillance technology, their very setup is subject to numerous procedural safeguards. Privacy offenses through surveillance have never been taken lightly, by the law or the Courts. Aadhaar, if it’s a surveillance technologies, in effect negates each these defenses developed over the years, and creates a nation-wide, pre-built surveillance system, which is capable of privacy violations way beyond what the bounds of a law can shield. The real dangers of Aadhaar are defined by what it really is, rather than solely by the purpose for which the law has established it. It is therefore crucial that the Supreme Court thoroughly assesses the technology behind the Aadhaar system. If Aadhaar is indeed basically a surveillance technology, as alleged, then its potential for privacy violations is much bigger.

In Kharak Singh vs State of UP, Justice Subba Rao spoke of the psychological impact of surveillance on Someone. The US vs Jones conclusion, Justice Sotomayor, similarly describes the precise, comprehensive nature of a person’s profile that could be derived from GPS monitoring in general and the data derived from it. Including, as an instance, trips 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, and the gay bar and on and on…”. Taking a look at the Indian context, together with problems such as racism, political associations, sexual orientation, health conditions, all being highly sensitive issues, brings to light the effect noted in this circumstance, which ‘awareness that the government could possibly be watching chills associational and expressive freedoms’.

Aadhaar, then, are a case where the GPS is being set up in the name of, say, identifying the owner of the automobile, rather than expressly stating that it’s for the purpose of surveillance. Just because the legislation, on paper, installs the GPS for the purpose of identification, doesn’t stop GPS info from creating a data trail that enables the monitoring of a person, and there’s nothing to stop the GPS info from functioning as a surveillance technology later on.

The technical affidavits presented at the Aadhaar instance, for instance, argue that each electronic device has a exceptional ID, and as soon as it’s linked with all the CIDR, it’s assigned another exceptional ID. Together, these create a unique digital route allowing genuine and non-real time monitoring of trades, location and time of Indian residents.

Looking at the impact of the surveillance possibility of Aadhaar, the petitioners further assert that the Aadhaar system joins every citizen into a ‘electronic leash’, designed to monitor transactions across the electronic life of a taxpayer. They argue that the profiling of taxpayers, their moves and their customs will permit the State to influence their behavior, and stifle dissent and affect political decision making. They also assert that several state authorities have already started building such profiles of residents.

Having a country installed surveillance system

The impact of state surveillance of a person, however, is not in issue in this situation. The issue is if an identification technologies, which the law prohibits from using as a surveillance apparatus, may have the same limiting impact. It comes down to the technology behind Aadhaar, and also the extent of the surveillance capabilities of that technology.

Going back into the Aadhaar GPS analogy, truth be told, the psychological impact of a GPS device in your car, does not fluctuate based on whether or not the device is actually being used as a surveillance device. If it is a surveillance apparatus, its very presence in your vehicle, the fact it’s a state installed apparatus, and also the fact that it could be collecting your data at all points of time, can have the same chilling effect on a individual’s liberty. This can result in people avoiding places that they would normally freely visit. People may even choose to opt out of driving and walk instead. Except that identification a system such as Aadhaar is a surveillance system, you would not have such a choice.

For instance, the petitioners from the Aadhaar case argue that every basic facility, like bank accounts, ration, pension, college admissions, and so on, are linked to the Aadhaar system. If an Aadhaar amount is deactivated, they argue, it would make access to all these basic facilities hopeless, thus making living in society very difficult. Opting out of the Aadhaar method to prevent surveillance, would likewise have exactly the exact same effect.

Legal limitations Can’t prevent offenses

Even limitations imposed under the law would not prevent the violations that could be possible with such a method. Misuse of a limited surveillance capability like that through phone tapping was evident in the PUCL case. To enable the installation of a nation-wide surveillance program will make its abuse that much simpler, despite any applicable laws. Consider the controversial executive arrangement which empowers surveillance by the NSA in the united states, which requires ‘full consideration’ to be awarded to the ‘rights of US persons’. According to Snowden’s revelations, clearly, no consideration was given to these rights.

A new law can easily permit NSA like surveillance

Moreover, if Aadhaar is basically a surveillance technologies, 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 example, the Supreme Court clarified that there was nothing to stop Aadhaar, an investigation tech, for use voluntarily with the intention of receiving subsidies under the Aadhaar Act, and mandatorily for another purpose like preventing black cash under the Income Tax Act.

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It is equally possible, hence, that a new law makes it possible for the mandatory usage of Aadhaar technology, to conduct surveillance for the purpose of preventing terrorism. This, for example, allows ‘all means’ to be employed to ‘create intelligence information’. A similar legislation could easily permit the use of the pre-built surveillance system for use expressly for surveillance. (Do note that the Supreme Court is yet to listen to the Aadhaar PAN case with respect to whether the linkage violates the fundamental right to privacy).

Circumventing procedural safeguards

The U.S. v. Jones case, dealt with a famous surveillance apparatus, established expressly for the purpose of surveillance, and beneath a surveillance legislation. The simple fact that processes established for example time and place of installation, time for that the surveillance is conducted were not strictly followed, were major problems, despite there being an investigation warrant. The PUCL case, similarly, prescribed a few procedural safeguards to stop the abuse of phone tapping laws.

An important distinction is that these cases dealt with surveillance technology that has been installed without the person’s knowledge. The matter of whether or not a surveillance technology installed with the person’s understanding but for a goal other than surveillance, has the exact same impact on privacy can also be unaddressed.

Nonetheless, the careful nature by which surveillance technologies happen to be treated, whether laws or the courts, is an understanding of this inherently violative nature of a surveillance technologies. In certain areas, like the US and Australia, the law punishes the ‘setup or use’ of a surveillance apparatus, indicating the installation of such a unit is punishable. Putting a nation-wide surveillance technologies, under the pretext of an authentication technologies, doesn’t change the fact it’s the exact same inherently violative technology. The only result is that this method effectively circumvents every one of the many safeguards prescribed over the years for the installation of a surveillance technology.

The least invasive breach of privacy

Whether or not Aadhaar is a surveillance technology will have a large impact in analyzing the degree to which it violates, and also in future could violate, the right to privacy. It’s a fact that even a fundamental right is subject to restrictions, and it can be lawfully invaded within the bounds of the law. But even in such a scenario, certainly the least invasive violation has to be chosen.

A demand for an identification tech doesn’t warrant the setup of a nation wide surveillance program. It’s thus crucial that the Supreme Court enter the technicalities of the technology supporting the Aadhaar system and assess the amount of its own surveillance potential.