• Soumya Khurana

The Right to Privacy in the Digital World

Back in the 20th Century the United States Supreme Court was baffled with a question that was way ahead of its time. The telephone had been in use for some time when a man named Charles Katz used a public pay phone booth to transmit illegal gambling wagers from Los Angeles to Miami & Boston. The FBI recorded his conversations using an electronic eavesdropping device attached to the outside of the phone booth and Katz was convicted based on these recordings. He challenged his conviction, arguing that the recordings were obtained in violation of his 4th Amendment rights. The Supreme Court ruled that amendment's protections apply only when the searched party has a "reasonable expectation of privacy" & in this instance Katz would have had such expectation. This case made wiretapping by state and federal authorities subject to the Fourth Amendment's warrant requirements.

Thus the reasonable expectation of privacy test formulated in Katz v/s The United States [389 U.S. 347 (1967)] was born,

“....the Fourth Amendment protects people, not places. The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a 'place.' My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person has exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.' Thus, a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the 'plain view' of outsiders are not "protected," because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable..."

The most obvious example of a reasonable expectation of privacy for a person would be his home. One doesn’t have to be a ‘homeowner’ to expect certain form of a privacy, a tenant would expect the same level of a privacy as the landlord. For instance, if a couple were to take on rent a house and the landlord installed a hidden camera to keep surveillance on them, it would amount to invasion of the said Privacy.

Another interesting instance could be seen in the United States wherein a murder accused is being forced to part away with his ‘dear’ Alexa and all the conversation he has ever had around her.

This whole idea gets extremely tricky when the premise of this right moves from a private place to a public one. For instance, In Murray v Big Pictures [[2008] 3 WLR 1360], a photographer had taken a series of photographs of a writer’s infant son, which were later published in a newspaper. The issue was whether there was misuse of private information by taking photographs. It was held that,

“[The] question of whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher… [I]t is at least arguable that David had a reasonable expectation of privacy. The fact that he is a child is in our view of greater significance than the judge thought.”

Whereas In the matter of an application by JR38 for Judicial Review (Northern Ireland) [[2015] UKSC 42], the Appellant was involved in rioting in 2010, when still only 14 years of age. The police, in order to identify those responsible, and for the sake of deterrence, published CCTV footage depicting the Appellant in two newspapers. The issue involved was,

“Whether the publication of photographs by the police to identify a young person suspected of being involved in riotous behavior and attempted criminal damage can ever be a necessary and proportionate interference with that person’s article 8 rights?”

The majority held that Article 8 of the European Convention of Human Rights was not engaged, as there was no reasonable expectation of privacy in the case. Lord Toulson (with whom Lord Hodge agreed), while stating that the conduct of the police did not amount, prima facie, to an interference with the appellant’s right to respect for his private life, held that,

“The reasonable or legitimate expectation test is an objective test. It is to be applied broadly, taking account of all the circumstances of the case (as Sir Anthony Clarke said in Murray’s case) and having regard to underlying value or values to be protected. Thus, for example, the publication of a photograph of a young person acting in a criminal manner for the purpose of enabling the police to discover his identity may not fall within the scope of the protection of personal autonomy which is the purpose of article 8, but the publication of the same photograph for another purpose might.”

In reference to the Indian judgement in Justice K.S Puttaswamy (Retd.) v. Union of India and Ors. [WP (C) 494 of 2012] there has not been any clarity whatsoever as to the existence, acceptability as well as the applicability of this test. The judgement mentions in its conclusion by Chief Justice of India JS Khehar, Justice Agrawal, Justice Chandrachudh and Justice Abdul Nazeer,

"While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being."

Apart from this, various other cases like that of People’s Union for Civil Liberties v. Union of India [AIR 1997 SC 568] the Supreme Court of India held that right to hold a telephonic conversation in the privacy of one’s home or office without interference can certainly be claimed as right to privacy. In this case the Supreme Court had laid down certain procedural guidelines to conduct legal interceptions, and also provided for a high-level review committee to investigate the relevance for such interceptions. This would force us to think that all of do have the right to determine what is a reasonable expectation of privacy.

However in the same judgement, the Supreme Court has not gone ahead to mention anywhere as to what would entail as the scope of this test, it has left this area to be examined and determined on the basis of the facts at hand. Also, Justice Nariman has rejected the state's argument that the Court should follow the "reasonable expectation of privacy test", while determining the contours of the right to privacy by referring to the judgment of the SC in District Registrar and Collector, Hyderabad & Anr. v. Canara Bank, etc. [(2005) 1 SCC 496 at 48], and thereby holding that that the "reasonable expectation of privacy test" has no plausible foundation under Article's 14, 19, 20 and 21 of the Constitution of India.

This is the space wherein a huge amount of confusion has been created. On one had the Judgement accepts the basis of a reasonable expectation of privacy whereas the other part of the judgement completely negates its existence by mentioning a three point argument by saying that firstly, it would not admit of arguments that privacy is limited to property or places. So, for example, taking one or more persons aside to converse at a whisper even in a public place would clearly signal a claim to privacy, just as broadcasting one's words by a loudspeaker would signal the opposite intent. Secondly, this formulation would not reduce privacy to solitude. Reserving the rights to admission at a large gathering place, such as a cinema hall or club, would signal a claim to privacy. Finally, neither would such a formulation require us to hold that private information must be information that is inaccessible to all others.

It is left to be seen, whether we can expect the state as well as the non-state entities to respect our expectation of privacy or do we have to part with any and every form of personal liberty and dignity to co-exist on a platform wherein nobody is a stranger anymore.

About The Author

Soumya Khurana is a CS student, an avid reader and an articulate speaker. Soumya has conducted training sessions and adjudged several debating and Model United Nations Conferences at institutions such as Sri Venkateswara College, SGTB Khalsa College, Presidium School, among others.

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