A lot of conversations about expanding rights, end up with a distinction between positive and negative rights. A right to water, is different to free speech. For everyone to have a right to water, someone needs to provide the water or be held accountable for not providing it. A default, state culprit needs to be designated.
Privacy though, privacy is like speech or equality before the law or presumption of innocence. You have it by default and if it’s denied there is a culprit.
Even in this case, we seem to have a hard time expanding rights. I say expanding, but privacy is a right in many places, formally. But, the interpretation of that right is very weak.
Anyway… if we’re to make privacy a right with serious intent then there needs to be a willingness to break eggs, bear a cost. The right to free speech, conscience, affiliation , assembly and other political freedoms mean we need to tolerate and protect the proverbial nazis’ rights to try and spread their politics. Bitter pill for anyone scared of a proverbial nazi takeover.
Are we willing to bear the (fear-based, mostly) costs in the fight against the terrorism demon. The economic costs that will be claimed by companies relying on data? If we have a strong yes, I think we can start building the real framework of laws and conventions that will secure a right to privacy for the next few generations.
>The right to free speech, conscience, affiliation , assembly and other political freedoms mean we need to tolerate and protect the proverbial nazis’ rights to try and spread their politics. Bitter pill for anyone scared of a proverbial nazi takeover.
Nazi's are an easy target. The problem starts when things are not as clean cut -- when actual politics are involved, as opposed to crude stuff like "exterminate all jews" and "blacks are inferior", etc that Nazi's might say.
Let's say a team wants to overthrow the presidency and bring something like another parliamentary system in the US. Or rewrite the constitution and remove the BS ideas from 3 centuries ago.
Should they be allowed to express their ideas? If they get somewhat popular and other people worry about their influence?
And what's stopping disagreeing people from considering them the same, or worse, as they'd have more current influence, than Nazis, and asking to ban their speeches etc?
(Many people considered the CPUSA like that in the 30s and up to the 60s)
This is exemplary of a tendency organizations have: prioritizing existence of the organization over the values the organization was formed to uphold.
The US was ostensibly formed to preserve the rights of its citizens. If we let people exercise those rights, they may dissolve the union. But if we don't let them exercise those rights in order to preserve the union, the union loses its entire purpose; the union as it was intended is destroyed just as surely as if it were dissolved.
> Nazi's are an easy target. The problem starts when things are not as clean cut -- when actual politics are involved, as opposed to crude stuff like "exterminate all jews" and "blacks are inferior", etc that Nazi's might say.
It wasn't so clean cut back in Germany in the 30s either, there was always some other rhetoric: being "stabbed in the back" in WW1 by internal forces, using emergency powers to deal with effects of Great Depression and threat of Marxism.
[Update]
I encourage watching snippets of Hitler's speeches (with translations): https://www.youtube.com/watch?v=AnpTWKKWQ1o. Strip away swastikas and heils and these could be used by populist politicians today.
Even if we succeed in prosecuting hate speech there will still be plenty room for fanatics to come to power.
If the idea is not peaceful though, even though the expression is? "We should change the law to make murder legal" is a peaceful statement, but if it catches on...
I don't see why any of those are problematic, all should be protected as free speech. Speech is not violence, it does not have victims and thus should not be in any way a crime no matter how repugnant. No speech should ever be banned.
> A lot of conversations about expanding rights, end up with a distinction between positive and negative rights.
Correct. Right to a fair trail is also a positive right. To uphold it, the state must pay for a lawyer if you don't have one, the state must pay for enough judges (& associated costs) to ensure your trail isn't delayed ("Justice delayed is justice denied" and all that).
> The right to free speech, conscience, affiliation , assembly and other political freedoms mean we need to tolerate and protect the proverbial nazis’ rights to try and spread their politics.
Plenty of legal systems have those rights, and also ban nazis or similar groups. It's not an either/or.
Ehh, I'm not sure. The actual right is better described as the right not to be unfairly tried, which is clearly negative. The distinction is more than semantic: if the State launches an investigation and then drops it, leaving suspicion in the public's mind, you can't force them to go to trial to present your case and clear your name.
What you're running into is the fuzzy distinction between positive and negative rights. Actually, in my mind there probably is no distinction and the classification of some rights as positive and others as negative is just a matter of wording, take this from James Sterba:
What is at stake is the liberty of the poor not to be interfered with in taking from the surplus possessions of the rich what is necessary to satisfy their basic needs. Needless to say, libertarians would want to deny that the poor have this liberty. But how could they justify such a denial? As this liberty of the poor has been specified, it is not a positive right to receive something, but a negative right of non-interference.
The right not to be unfairly tried is easily satisfied by not having a trial at all.
The right to a fair trial is about two things: you must be tried before being found guilty and punishment/sentencing is administered, and that trial must be executed fairly. In effect, you have the right to a (fair) trial.
A trial and especially a fair trial are undeniably interventions on how things would otherwise proceed. But I agree with moomin that the positive/negative distinction is not really meaningful.
A trial and especially a fair trial are undeniably interventions on how things would otherwise proceed
No, because otherwise it would just be aggression. A trial is a method for the accusers to be able to show that their subsequent aggression (imprisonment, removal of property, etc) is justified.
How about you read declarations of rights to a fair trial and point out where they imply that they are principally about ensuring the accusers' application of aggression is justified, as opposed to protecting the accused?
Whether or not you think an "extra right" is necessary has no bearing on why that right is provided.
> Free speech and free association are not extant when books are banned or ideas are outlawed.
I mean, is this just arguing about the definition of the term "free speech"? It's not hard to think of easy examples, like the "shouting fire in a crowded theater" or "revealing military secrets to the enemy at times of war" or "libel" or "slander". By necessity, we accept that there are restrictions.
In general I favor a generous standard, where to disallow certain types of speech you need to carve out a compelling case -- the default should be that speech (and speech-like things) should not be forbidden. But stating it as a naked tautology is not helpful because it acknowledges none of the nuance.
> all historical evidence serves to confirm this
Once again, if we're just talking definitions, then sure, any place or time where books are banned or ideas are outlawed is not practicing free speech. But I think you'd be hard-pressed, given the exceptions above, to ever find a place in history where this was practiced.
The definition of something as a right doesn't imply that it is absolute. Incarceration, for example, almost certainly infringes on most rights you can think of (assembly, property, association, speech, privacy, pursuit of happiness). Yet it's routinely practiced.
So, no: personal rights don't have to come with costs to be meaningful. Example: "You have the right to peacefully assemble and protest for your beliefs. Yeah, no, not in my living room." Religious liberties, as another example, also seem to be doing just fine, even though it seriously cramps my style that people apparently belief virgin sacrifices are no longer included in that freedom.
> The right to free speech, conscience, affiliation , assembly and other political freedoms mean we need to tolerate and protect the proverbial nazis’ rights to try and spread their politics.
I'm not convinced I know how I feel about this. I want to believe this is a false dichotomy. Can we have limits in polite society?
I keep thinking of the paradox of tolerance[1], which states, in brief, that if a society is tolerant without limit, their ability to be tolerant will eventually be seized or destroyed by the intolerant.
Are we really to the point where Nazi ideologies are spreading like wildfire, to the point that their "intolerance" will be seized by our "tolerance?"
To me it seems like the opposite is happening. Nazi ideologies are marginalized and meaningless, yet propped up like some huge threat to us... like they might take over. And this is being used as justification for limiting free speech, in a hyper-politically correct society where even micro-aggressions could be categorized as "hate speech."
Perhaps we could just recognize and acknowledge that, while reprehensible, it's not like Nazi believers are anything more than a rounding error in normal society. And then move on with our days.
I would argue we have gone the other way: we are so busy stomping down Nazi like ideologies that the stomping it down has become as bad of hate speech as the Nazis were.
Until the government begins a mass extermination program for haters, I can't help but feel this is a hyperbolic argument. Not granting permits to march is totally incomparable with genocide.
If we're going to tolerate Nazi and Nazi-like speech, don't we also have to tolerate those who would should them down?
Until we start rounding up Nazis, and Nazi sympathisers, and politely asking them to reside in this here concentration camp and eat this rotten-fish-head-with-cabbage soup, shouting them down seems quite reasonable.
"Are we really to the point where Nazi ideologies are spreading like wildfire, to the point that their "intolerance" will be seized by our "tolerance?""
You're thinking about it a little backwards - here's a fascinating example of the paradox of tolerance:
Proposition 8, in California (2008)[1] was a ballet initiative that proposed that "only marriage between a man and a woman is valid or recognized in California".
Proposition 8 passed and the post mortem indicated that black and latino/hispanic voters (who are not politically progressive in the manner of coastal californians) voted (overwhelmingly, in the case of blacks) in favor of the proposition - so much so as to be a deciding factor in its passage.[2][3][4]
It is not, but it is still interesting and closely related.
The minorities in question were welcomed into society and empowered with votes then promptly voted to oppress another minority. There are clearly problems with this.
I suspect actually Nazis may be a rounding error, but Nazi believers are probably much more. And in some regions maybe even approaching double digit percentages.
If we have data let's go with the data. If all we have is opinions, let's go with mine.
What are we to do? One way of dealing with the problem would be to ask the question at census time: Do you believe in Nazi or Nazi like ideologies? and then round those people up and put them to death. This has it's own problems.
I agree that we shouldn't tolerate intolerance, right up until you said "round those people up and put them to death". Any state run mechanism for this will be abused and infringes on a whole bunch of other rights.
Doing things like clamping down speech that incites violence or otherwise directly harms people is working. More options are open for almost all members of minorities than ever before (in terms of jobs, opportunities, legal recourse, etc... ). The nazis are just being loud about it now because they think trump will somehow protect them.
Convict and arrest people advocating for the death's of others, financially fine those empowering that one specific kind of speech and the people will continue to get smaller. Without the violence hate speech cannot grow.
Many countries have limitations to free speech (e.g., Germany banning holocaust denial, Sweden banning hate speech) but have a free and open culture in spite of this. It's a hard balance to strike, but freedom of speech doesn't have to be all or nothing.
If dissenting speech is stopped, how will the public ever know when an argument is illegitimate and when it is merely dangerous to the ruling class?
People don't find this to be convincing: "Don't worry, the ruling class makes sure only the dangerous speech is stopped". Especially with free speech rules, we have a "Quis custodiet ipsos custodes?" situation.
I'm sure German's have their own opinions about it all, in private, and in public to the extent allowed under their laws, and they seem to have a relatively coherent sense of how to go about having a society. Perhaps even more coherent than the US.
In 2015 Germany rated higher (aggregate score 95) than the US (aggregate score 90) for freedom of the press.[1]
Then it's not free speech. If you're not free to speak about certain things, you do not have freedom of speech, it is very much all or nothing. Freedom is a binary condition, you either have it, or you don't.
It may be that having 'full' freedom is correct in some senses, but it seems fairly clear that it's non-binary.
A government which firmly censors newspapers writing restaurant reviews but allows anything else is fairly clearly more free than one which also forbids discussion of politics, religion, and the football results. I don't think anybody would say they are indifferent to which of the two they would prefer, on the grounds that neither are wholly free.
It's an abuse of language to call either of them free, neither are free, one is simply less authoritarian than the other. Yes, authoritarianism is not binary, there are many levels, but freedom of speech is binary, if you can be jailed for speaking, you do not have freedom of speech, you have an authoritarian government that may be less worse than others, but don't confuse it or label it as less free, it's simply not free. What you're doing is newspeak.
We can certainly have limits in polite society, just not in public life.
Tolerating intolerance is indeed an issue, but I don’t think there’s anything inevitable about their eventual success. For liberal democracy to survive, the electorate need to choose it. If 51% of the public is non democratic in their political preferences, we can’t have democracy.
If freedom of speech is important, speech must have the power to have real consequences. If something has real consequences, those can be either bad, good, or neutral.
If all consequences of speech were neutral or positive, we could make the world a better place by connecting a source of randomness with a text-to-speech synthesiser. But that's absurd.
Therefore, speech has the ability to harm. The distinction between "words" and "actions" is meaningless, as is already obvious from your inclusion of harassment in your list of actions. Because harassment is also just speech.
No, harassment is the action of repeatedly crafting then using deliberately harmful speech toward a specific target. It's not about the speech at all. The speech can change. The combination of repetition, intention of harm, and specific target can not.
And you speak about consequences, but those consequences are the one that should be punished. Because you can assess consequences. You can evaluate damages. You can't evaluate the value of words.
If you say "kill the xx" one time, it really doesn't matter.
If you say "kill the xx" and that it leads to attempt to kill, then the problem is the intent to kill.
Otherwise South park / Rick and Morty could not exist.
> Otherwise South park / Rick and Morty could not exist.
South Park is freely shown on TV stations in basically any country that has enough of an audience to make economic sense. Every single one of those countries has more restrictive laws regarding hate speech, yet they also seem to have the capability to distinguish between a TV show and and armed mob with swastikas.
This is tricky. I think a workable solution is to create zones where free speech is unrestricted and where new ideas can be incubated. They themselves would have some restrictions (e.g. you can't physically hurt the person you lost a debate to) but would, by and large, be free speech zones. The idea was described in this speech https://www.youtube.com/watch?v=FJktQiZRa5A
The rest of society can have different rules which can be more nuanced.
Yeah, that's an incredibly stupid idea–and I say that as a big fan of reasonable limits on free speech.
Creating "free speech zones" seems like a surefire way to start telling everyone to "take it to the free speech zone" and stop annoying "normal people" with your ideas. It's like the wet dream of these people that have started calling citizens consumers, even in a political context, and advocate the criminal prosecution of peaceful protesters when they don't all stay on the sidewalks.
FWIW, I first remember hearing the term in the context of the Beijing Olympics, which should tell you everything you need to know about that idea.
I went to university in the United States. The university I attended instituted "free speech zones" in the wake of the (second) Iraq War. They were initially protest zones, but by the time I was there they had turned into what you basically said - places where students were told to go to express unpopular ideas instead of being allowed to express them in class.
I took a sociology course during my studies, and the topic of abortion came up. Instead of having a nuanced discussion about the topic, students objecting to the professor's view were cut off or ridiculed. One student, trying to articulate their position was yelled at, by the professor, to shut up and if they felt strongly enough to take their position "to the free speech zone with the other Christian fascists and religious weirdos". Every year I was there, the bounds of the free speech zone got smaller and smaller, so there was even less room where unpopular ideas were officially tolerated on campus.
This is part of why I got out of academia. Not because of any institutional bias, but the authoritarian bent of the administration. All of campus should be a free speech zone. (No, disrupting class is not "free speech", there is a difference.)
The term "free-speech zone" is older than that. It goes back at least to 2004, and a similar concept under a different name ("protest zone") is even older.
That makes sense. It's not something I'd considered. However, this is not exactly what I had in mind. My thought was that society should have, as you've put it, "reasonable limits on free speech" but these zones should be "free speech absolutist" places. So the scale is from absolutist in the zones to regular in normal society rather than normal in the zones and restricted in normal society. Whether the former will collapse into the latter and how to prevent that are serious problems though.
In practice I think the positive negative distinction is somewhat pointless. All rights, regardless of their "nature" require enforcement and consistent interpretation and neither of those things come for free.
Part of the problem for Americans is that they have two definitions of rights. There's the ones in the Bill of Rights, which are phrased in a negative way. And there's those in the Declaration of Independence, which are provided by the creator and that governments must implement. And those rights are extremely broad. Heck, just the right to life could reasonably be argued to ban the death penalty. (Luckily for jurists everywhere, the Declaration of Independence isn't actually on the statute book.)
In practice, I think the distinction (and to be quite honest, pretty much the entire minimalist/constitutionalist approach) is mostly used to justify path dependence. The founding fathers believed that later generations would have enhanced understanding of the world. Fetishising their every decision just makes for a worse America.
I’m not opposed to positive rights, but I’d rather we call them something else so as not to erode the special nature of regular rights.
In Europe/UK, the right to housing is often mentioned. That is a completely different can of worms. A state can try and fail to provide everyone access to housing. This is different to free speech. There is no such thing as well intentioned failure to protect speech.
They aren't special, though. The distinction between "positive" and "negative" rights completely melts away when you ask yourself who has substantive access and who merely has formal access to their rights.
For example, free speech. You can't exercise your right to free speech when you're dead. Everybody may have formal access (access on paper) to free speech but some people have far greater substantive access due to their socioeconomic status. A poor person will suppress their right to free speech in exchange for a job so they can buy food. Their employer, on the other hand, can say whatever they want without the risk of being fired. Same formal access, different substantive access.
This exercise works for any right. Perhaps the most obvious one is the right to a fair trial. It would be laughable if it weren't so horrific. Every day, countless people have their lives ruined by the criminal "justice" system because they cannot afford the best lawyer. Wealthy people simply do not have this problem. A person with a lot of wealth has far greater substantive access to a fair trial than the average person.
For an admittedly artificial example of positive vs negative rights.
If you consider, say, a person living in the middle of a desert.
A right to privacy amounts to just being left alone, and enforcing that would only be required if another party were actively violating that right. <- It's easy to argue for this.
A right to water, on the other hand, might require that some other party be forced to provide water to this person in the desert. <- Here many people might quite reasonably argue; why should others put themselves out to facilitate this persons life choices.
> All rights, regardless of their "nature" require enforcement and consistent interpretation and neither of those things come for free.
You start to hit on the distinction a bit when comparing the Bill of Rights and the Declaration of Independence, but you seem to think the ones in the Declaration are less important.
The Declaration talks of "inalienable rights". These are rights that cannot be legitimately violated. That's not to say they can't be violated (slavery was obviously a thing), but that people and governments who violate them are wrong (tyrants, in the language of the Declaration).
So the lack of an enforced legal framework doesn't mean something isn't a right. It can mean that some organization or person is failing to be decent, though.
To be clear, I don't think they're less important. I think they're unenforced. But in my experience most people don't seem to really believe in the rights in the DoI if it would cost them anything. For instance, just the right to life would _definitely_ include a right to water, which is an example given elsewhere.
There's an inalienable right to water to the extent that a government would be tyrannical because people didn't have water. I can imagine a few different scenarios where that would be the case.
The "right to life" was more broadly talking about who owns a life (the individual, nature's creator, not the government). It wasn't talking about the right to be free of all death.
Not entirely. Consider the case of water privatization, where there's a real risk of extortionate pricing of what used to be a common good. If carefully written, right to water laws can ensure that such resources are used for the benefit of the people, instead of being just another market good that gets slowly monopolized.
Edit: In other words, you may already have the right to free speech, while water must be provided, but both can be denied.
A word of caution before being carried away by the words "fundamental right". According to the judgement, the right to privacy is fundamental (as an offshoot of the fundamental rights of freedom of life and personal liberty guaranteed under Article 21 of the Indian Constitution).
Asserting it as a "fundamental right" raises the bar on what restrictions can be put. But reasonable restrictions can still be put.
A separate bench of the SC is now going to test the validity of the Aadhaar Act on the basis of whether the restrictions are reasonable in the light of privacy being a fundamental right.
Edit: The Aadhaar Act is an act that allows for the government to collect biometric and other personal data that can be used to identify an individual for various services (including but not limited to governmental benefits).
At least put in some effort to explain on what you mean. You didn't mention what type of restrictions can be put in as well as why getting carried away by the words fundamental right is something to be cautious about.
> as why getting carried away by the words fundamental right is something to be cautious about.
Because people sometimes tend to equate "fundamental" with "absolute", and assume that the right cannot be taken away from them under any circumstances. That is not correct.
> You didn't mention what type of restrictions can be put
What is a "reasonable restriction" has not been defined unequivocally - it is subject to interpretation of the courts.
Apart from declaration of emergency, which is an exception circumstance, when has the fundamental right been taken away? Why are you giving extreme examples to prove your point? The last time fundamental rights were taken away from Indian citizens was in 1975.
Fundamental rights are not absolute, in the sense that reasonable restrictions can be placed on them.
An example is Article 21 of the constitution:
No person shall be deprived of his life or personal liberty except according to procedure established by law
So a person's right to life or personal liberty can be restricted according to procedure established by law. That is why you find people in prison. Their fundamental right to liberty is restricted by a procedure established by law. Similarly, the fundamental right to privacy can be restricted by a procedure established by law.
"Reasonable restrictions" are not very well defined in the Indian constitution. They are quite broad and open to interpretation on a case-by-case basis.
"... the State can impose reasonable restrictions in the
interests of the sovereignty and integrity of India, the
security of the State, friendly relations with foreign
States, public order, decency or morality or in relation
to contempt of court, defamation or incitement to an
offence."
Justice A.P.Shah panel had recommended principles for privacy which goes into quite a bit of detail. So there is a guiding light and not everything will be case-by-case basis.
Can reasonable restrictions be put on fundamental rights as well? So you are suggesting that the right to life has reasonable restrictions -- that in order to be friendly to a foreign state, the nation state can murder their citizens?
Sorry for being off topic but I believe fundamental rights do not and should not require a citizenship test. If we hold these rights to be fundamental, we must not be willing to tolerate violations of such rights of any person in our jurisdiction.
I'm not suggesting anything, the Constitution of India specifically allows for "reasonable restrictions". The right to life does have restrictions - the death penalty is still legal in India.
As an aside, this is a decent example of why some people oppose bills of rights. As I understand it, the argument is that a bill of rights is considered exhaustive; if it's not in the bill, it's not protected.
By contrast, countries without a bill of rights are free to interpret their constitutions through implied rights, in ways that make sense in the context and allow the constitution to adapt to new or developing circumstances.
At least in the U.S., that is not the real issue. Nobody disputes that the Bill of Rights is not exhaustive. But just because the Bill of Rights is not exhaustive does not mean that the Supreme Court may make up new rights over time. Legal conservatives in the U.S. adhere to the idea that for a right to exist, society must have recognized it as a right at the time the Constitution was written. In other words, you do not have to find the right in the Bill of Rights, but you do have to find it somewhere.
This is very reductive and borderline misleading. Federalist No. 84 discusses some very specific reasons why it may not be a great idea to have a bill of rights -- primary dealing with government overreach. I think placing the debate in the politically-charged context of "originalism vs living document" is pretty unfair.
> Nobody disputes that the Bill of Rights is not exhaustive.
Unfortunately, that is not true. Robert Bork famously disputed it, even going so far as to deny the validity of the ninth amendment. Many conservatives support Bork's position today, e.g.:
> They do this because it's a logical pre-requisite for overturning Roe v. Wade.
It's really not, though, it's just a convenience; one could easily find grounds tomreverse Roe.and even the subsequent abortion decisions without just ignoring the Ninth Amendment. The real reason is that the Ninth Amendment is irreconcilable with the narrow mode of textualism that I personally think of as “four corners” or “sola scriptura” textualism, that seems to portray the Constitution’s text as complete and needing no external historical, cultural, etc., understanding to interpret. Because the Ninth Amendment specifically lays out that their are rights which existed and remain protected wothout being enumerated in the Constitution, it necessitates looking beyond the four corners of the Constitution to identify what those rights are.
No, it's not so easy. Conservatives have been trying unsuccessfully to overturn it for 44 years. (Actually, that's not quite true. The effort to overturn Roe didn't actually start until 1979, fully six years after Roe was decided on a 7-2 vote. And the truth is they don't really want to overturn it. They really just want to use it as a wedge issue.)
It's easy to construct a coherent interpretation of the Constitution that invalidates Roe without nuking the Ninth Amendment (the thing with fuzzy penumbras and unenumerated rights is that it is very easy to come up with equally coherent interpretations of what their scope is.)
It may be hard politically to get a Court majority appointed and confirms that agrees with eliminating abortion rights whatever the logical basis (or even without consensus on the basis; court decisions where there is a majority on the result but not the rationale are possible, so you don't need a unifying rationale to get a result.) But that's a different issue and nuke-the-Ninth types don't help that.
> They do this because it's a logical pre-requisite for overturning Roe v. Wade.
It's not. They could just rule that fetuses of a certain gestational age are actually people and ban late term abortions (with fair exceptions).
Or they could rule that those fetuses are people and leave it to individual states to decide how to balance the rights to privacy and speech in these cases. States have the ability to use capital punishment, so there's some precedence for encoding the limits of fundamental rights at the state level.
> They could just rule that fetuses of a certain gestational age are actually people and ban late term abortions
Late term abortions are already largely illegal even under Roe. The political constituency that supports overturning Roe is ideological; they want to ban ALL abortions. So you would need to declare not only that fetuses are people, but that embryos are people, and that is fraught with all manner of legal peril. Should embryos be counted in the census? What about frozen embryos?
Bork didn't say that the Bill of Rights is exclusive, he said the 9th amendment is unclear about what other rights it is talking about: "We don’t have much evidence about what the Founders meant; they may have been trying to protect state-constitutional rights; we have good reason to doubt they meant the amendment to magnify the power of the courts to overturn laws."
> They do this because it's a logical pre-requisite for overturning Roe v. Wade.
I don't want to see Roe overturned, but I think the entire Griswold line is nonsensical. We have a perfectly good legal foundation for protecting abortion, which doesn't rely on conjuring rights out of "penumbras": https://www.washingtonpost.com/politics/courts_law/the-forgo....
> We have a perfectly good legal foundation for protecting abortion
No, unfortunately, we don't. A sound logical argument is not the same thing as a good legal foundation. Ginsberg's equal-protection argument has never been formally accepted -- or even considered -- by the court. And even on purely logical grounds it is fraught with peril because it assumes that a fetus is not a person. If a fetus is a person then they too are entitled to equal protection.
Personally I'd rather cast my lot with the right to privacy and the ninth amendment. I value that right far beyond its ability to protect reproductive freedom.
That's not an honest depiction of the situation for 2 reasons.
1. If the 9th amendment is interpreted to mean the courts can declare anything they think is a right, it allows unlimited power. "The Ninth Amendment obviously does not create federally enforceable rights."
2. Overturning Roe v. Wade wouldn't require much legal logic, except the precedent has been upheld several times. Without that, you could question any of steps it relies on:
a. there's an implied right to privacy (9th or 14th amendments)
b. the federal government has a mandate to enforce it
c. this right implies states cannot restrict abortion
d. the "balancing test" is legit, terminating the right in the last trimester
> If the 9th amendment is interpreted to mean the courts can declare anything they think is a right, it allows unlimited power.
No, that's not true. The court can't just decide anything it wants. It can only decide cases that come before it. Before the court gets to decide anything there is a very long drawn-out process that filters out a lot of crap. Furthermore, the court has to decide on the basis of the arguments and evidence presented to it. The court can't just invent a new right out of whole cloth; it has to be on the basis of evidence that it is a right "retained by the people" who are, after all, the ultimate authority on everything, at least in theory.
> Overturning Roe v. Wade wouldn't require much legal logic, except the precedent has been upheld several times.
You undermine your own argument in the second half of this sentence. That's like saying, "Tearing down the pyramids at Giza wouldn't be very hard, except for moving all the stones." To overturn Roe you have to figure out why the original conclusion was wrong, and why all of the subsequent confirmations were wrong. That is not so easy.
> To overturn Roe you have to figure out why the original conclusion was wrong, and why all of the subsequent confirmations were wrong. That is not so easy.
It's obvious. The case was decided that way in the first place because the courts are political; they were "legislating from the bench".
OK, but I thought we were talking about legal arguments here. If you're going to maintain the illusion of the legitimacy of the court you have to at least dress the rationale up as something more convincing than, "We're overturning Roe because we were appointed by Republicans."
That's true but easier than arguing the previous precedents are wrong. Or so wrong, it would override the weight of them being a precedent.
The idea that the right to privacy implies the right to perform abortion seems like the weakest point to me. That argument only seems plausible if the right to privacy implies we can do anything to ourselves in private.
That's a ridiculous amount of power for a right which isn't even explicitly mentioned and way outside the Federal government's mandate. Not to mention inconsistent with many laws.
That's the least messed up part, if you dispute the validity of the ninth and it is also the first to explicitly state that the previous list is not exhaustive, then clearly your position is consistent...
"3B. Life and personal liberty are not creations of the Constitution. These rights are recognised by the Constitution..."
Similar ideas underlie the thought of the founders of the American constitution. The most fundamental rights are inherent- they do not need to be recognized separately. By including privacy among these rights, the Indian Supreme Court is making it more fundamental than e.g. freedom of speech or assembly.
Although I am far away and unaffected, I find this enormously encouraging. In a decade or two, the most populous country in the world will be a democracy with a fundamental respect for human life and liberty.
"The petitioners, former Karnataka high court judge Justice K.S. Puttaswamy and others, had contended that the biometric data and iris scan that was being collected for issuing Aadhaar cards violated the citizen’s fundamental right to privacy"
I find the above interpretation of privacy troubling. In order for the government to effectively distribute social services to the needy, cutting out corrupt/inefficient middlemen, it needs a way of effectively verifying someone's identity, so that people can't dual-enroll themselves. Having people provide biometric identifies such as Iris scans, if they want to qualify for government services, seems like a perfectly reasonable way to do this. I would also contend that when most people declare the importance of privacy, they are talking about their actions and lifestyle, not fingerprints or Iris scans. It would be sad if this ruling prevents the government from efficiently providing social services to help the poor.
Not really. He means that govt cannot force every citizen to undergo iris scan etc. for obtaining Aadhar card. I would like to get Aadhar without iris scan (and am willing to let go of secondary benefits like LPG subssidy etc). Such an option doesn't exist as of today. I, as an individual, will exercise my right to privacy by deciding whether to give my biometrics or not. Govt should not decide on my behalf.
Having a bank account from a non-government entity is not a benefit provided by the government. Yet, the government has issued notifications to link all bank accounts with Aadhaar or have the accounts indefinitely suspended.
Having a mobile number from a non-government entity is not a benefit provided by the government. Yet, the government's Department of Telecom (DoT) issued a notification asking all telcos to verify their subscribers using Aadhaar.
There are many other cases where the government has blatantly violated the Supreme Court orders that Aadhaar shall remain voluntary and that nobody shall be denied a benefit for want of having it.
Is this like the US and the SSN, which was originally only meant for social security, but is now used for anything and everything and many systems require it if you want to do business at all, even though the business isn't related to social security at all?
It's slightly similar, but a lot more dangerous since it has biometrics attached to it (ten fingerprints and two iris scans). There are no data privacy laws in India, and if someone faces misuse or loss or harm caused by this, they cannot even sue the other party because the legal act (Aadhaar Act) gives the right to sue only to the issuing authority (UIDAI). And UIDAI has a very poor track record of punishing the criminals and instead goes after those who point to flaws in the system.
There are already "benefit" cards like LPG card, ration card, BPL card, etc to get those benefits. Why bother with Aadhar then? The answer is, consolidation. Aadhar is meant to be the identity card. I don't want to carry big passport book, etc. wherever I go.
That consolidation, when combined with biometrics, means you can never get it replaced. Your only recourse to identity theft with your biometrics, or the fact that biometric error rates are very high, is to just live with it.
I would suggest you study the fallibility of biometrics and the associated problems of incorrect identification before looking at dual or multiple indentities. There's a wealth of information on Rethink Aadhaar as well as Scroll's Identity project. So far, the corecion on having an Aadhaar number has resulted in millions of people not getting their entitlements and many also dying because of that. On the other hand, corruption and fraud, like quantity fraud, have nothing to do with identifying genuine beneficiaries. If anything, the coercion of Aadhaar has made it easier for middle-persons to steal more, even by claiming that a genuine verification of identity hasn't worked and hence the person is not entitled to food (which these people then steal).
If one is looking at solving problems of theft, there are other bigger places to look at and plug "leaks" instead of oppressing the poorest of the poor.
Biometrics, unlike passwords, cannot be replaced or changed if leaked. And people leave their fingerprints in many places, and iris scans have been easily and trivially captured with photos. [3] The system used in India is the actual biometrics of the person that doesn't allow any kind of replacement (there are ways to create variable biometrics).
Error rates of biometrics are also too high to ignore on a population the size of India. In environments with a smaller number of people, biometrics may help in uniquely identifying people.
I was a bit surprised by the fact that all of the judges' opinions, which are embedded in the article, were in English.
But it turns out that English is the official language of the Indian Supreme Court, and the court has even gone so far as to rule that it need not provide a Hindi translation of its rulings:
It seems kind of bizarre to me that as an American English speaker half way across the world, I'm in a better position to read and comprehend the Indian Supreme Court's rulings than a great number of non-English-speaking Indians.
Language is political in India and I don't claim to understand half of it. Probably since the establishment of the republic after attaining independence there's been a tension between Hindi-speakers (who were the plurality of the population) and others. English was a "neutral" language and it helped that a lot of the administration, bureaucracy, and law carried over from the British already used it. Not to mention that the most influential leaders of the independence movement (Jawaharlal Nehru, Mahatma Gandhi, Sardar Patel) were lawyers educated in England.
Well, English is the inherited language for the majority of Indians. If we were to speak/read/write in vernacular, then we will need the article many languages (https://en.wikipedia.org/wiki/Languages_with_official_status...). And the language I speak at home is not in that list too.
Most of the time the only common language between all the judges of the Indian supreme court is English. Writing the opinion in any other language would mean it reaches even fewer people than English would (except may be Hindi, but I don't know how many of the judges are fluent in Hindi to write opinions in that language).
As it should be. The world is quickly approaching a very Orwellian feature unless we take steps to stop it. Right to privacy should be right up there with the right to free speech.
The Indian government has been mandating all utility providers to link the biometric details of the subscribers to their account. With the rising number of criminal cases due to misuse of laws such as those used in marital disputes, the government can easily control what services to provide or deny its citizens based on centrally available biometric database which it could not have done before. Of course this is just a crazy theory for now which can hopefully never happen due to this much needed judgement.
A lot of comments in this thread are misleading. What the Supreme Court has done is that it has expanded the interpretation of an existing Fundamental Right ('Right to life') to include a 'Right to Privacy'. Now this means that if any law is made that infringes on an individuals privacy then it'll be tested for reasonableness.
So before this judgment, the legislature could have for example made a law requiring all internet activity to be reported to the government or criminalized homosexuality (existing law) and anyone challenging the law could not claim that the law violated his privacy as such a right was not recognized.
After this judgment, such an argument could be made and the courts would test whether the violation of one's privacy is a reasonable restriction or not. So a law requiring you to have number plates on your car to be captured by traffic cams, or KYC norms for Bank accounts, reporting of your financial data to tax authorities could be held to be a reasonable restriction whereas laws such as criminalizing one's sexual orientation could be held unreasonable.
What prompted this constitutional reference was the governments 'Aadhar Scheme' which compelled 1.2 billion citizens to hand over their private biometric data to the government if they wanted to claim any government services. This judgment provides the test to be used while deciding whether the law and its applications are constitutional. Most likely the scheme will not be struck down in total but specific instances will be tested on a case by case basis. (eg. Aadhar can't me made compulsory for getting health services but can be made so for a Gun Licence as the latter seems reasonable but the former may not)
I'll wait for the full text of the judgements before celebrating. The ruling apparently consists of 6 judgements and should be available shortly. Hope this reins in the Aadhaar monster without leaving any wiggle room for the government to exploit.
What a fantastic document. Quotes from John Stuart Mill, precedents from India, UK, US, South Africa, Canada, and the European charter. Looks like a very scholarly judgment, worthy of study, worth every one of the 597 pages!!
I've read only a few parts of the judgment, but it reads like poetry while at the same time being crisp and powerful! Even when the hearings were on, there were many references and discussions that showed the broad scope of accepting and considering jurisprudence from elsewhere and seeing what would benefit people.
That this was an unanimous verdict makes it even better. I was apprehensive until today morning, and after hearing the verdict, I've been ecstatic!
Thanks. I'm kinda used to that on HN since many people who read my comments seem to be absolutely pro-Aadhaar/pro-government and don't seem to like any critique of the system and how it's putting people in danger (existentially and otherwise).
Here's what the Attorney General - the government counsel - argued
> He said that in developing countries, something as amorphous as privacy could not be a fundamental right, that other fundamental rights such as food, clothing, shelter etc. override the right to privacy.
It's a question which has alway bothered me. What happens when two fundamental rights clash with each other?
IMO, this is a specious argument, especially in the Indian context. Access to food, clothing, and shelter are NOT fundamental rights[0].
On the other hand, the Aadhaar program (which is the context the above argument was made for) can be viewed as impinging on the fundamental "Right to Constitutional Remedies" as its governing body the UIDAI is set up in such a way that the UIDAI itself has sole authority on whether or not a grievance needs the intervention of the established judicial system[1].
IANAL and I could be wrong here, but I think thats only partially right.
Although article 21 itself doesn't say anything about food, shelter etc, the courts have established precedent by including those in their interpretation of article 21 and the directive principles in the past.
However, I'm not sure there has been a ruling specifically affirming those rights as being fundamental, and the text of the constituion definitely does not mention them as fundamental rights.
The full text of Article 21 is simply:
"No person shall be deprived of his life or personal
liberty except according to procedure established by law."
Since the right to education is specifically included under Article 21(A), it is a fundamental right.
In the specific case of Aadhaar and UIDAI as they currently exist, I think the "Right to Privacy" which has now been affirmed, and the "Right to Constitutional Remedies" (Article 32) should take precedence.
Right to clothing isn't mentioned anywhere as far as I can tell.
> However, I'm not sure there has been a ruling specifically affirming those rights as being fundamental, and the text of the constituion definitely does not mention them as fundamental rights
Yes, there are rulings specifically affirming food, water etc. as fundamental rights.
I assume the counter-argument would be that a way should be found to provide food, clothing, shelter, etc., without violating privacy.
The implication seems to be that it's the collection of personal information in excess of that needed to perform the function appropriately - why do you need iris scans and fingerprints, when a name and a photo would arguably be sufficient?
How can you provide food/clothing shelter without violating privacy ? The person has to identify that he is needing assistance from the state for the state to be able to provide. The state needs iris/fingerprint because that is the only way for them to check your claim of who you are and you do not already have the means to access food/shelter by yourself.
Uh huh, and what if I do not want to depend of the government to provide me with food, clothing and shelter since I am able to earn those for my family and me (reducing the social security burden on the government), should I not have the freedom to excuse myself from these alleged social benefit schemes.
Your argument and many similar ones are now boring and have been countered enough times already.
Actually, I completely agree with your position. If you dont want ANY benefit, you should absolutely have the freedom to excuse yourself. The problem is that in a country like India 99% of the people do depend on some benefit or the other.
Not sure if you are aware, but the context around this specific discussion in India is around the use of Aadhar for targeted govt. assistance. The govt. position is pretty much that we need Aadhar for any subsidy and the courts are arguing against it.
Right to Privacy is the cornerstone of Liberty - which is the founding principle of democracy. Government was brazenly trying to push aadhaar for anything and everything - not just subsidies - and this ruling put paid to such authoritarian sureveillance tendencies.
I think it comes down to whether citizens are coerced to part with their personal information or not. If I need access to state programs of food, clothing, shelter, I should be willing to abide by regulations that make it easier to deliver these benefits.
Aadhaar as of now is a direct coercion to part with biometrics and has inadequate features to protect against identity theft. Not having aadhaar means not getting driving license, passport, marriage license etc.
i don't understand what 'right to food' means. If I don't get food , can I sue 'the government' ? What if the state is too poor or bankrupt to feed me. who goes to jail for violating my rights.
To HN readers outside India, who are unaware of the BG behind this historic judgement. It all started off with a series of litigations against the govt's mandate to link India's unique identity system - Aadhar (which includes biometric data) to existing Indian identification systems for different purposes.
In HN fashion, if you are interested to know about how the govt pulled of the huge technical overhead of storing billion records; it could be seen in talk here by it's chief architect - https://www.youtube.com/watch?v=08sq0y8V1sE
seems like they had a good session - from other news they took down that instant Muslim divorce. As one can guess that divorce procedure isn't gender symmetric.
"In India, Muslim men have been able to end their marriages by saying the word “talaq” — Arabic for “divorce” — three times. They could do this in person, by letter or even over the phone."
Can someone more well-versed in Indian law help me understand : Does this ruling prevent collection of biometrics or restrict it somehow under the Aadhar system?
Also, I recall the Indian Government was pushing Aadhar Pay - a biometric fingerprint scan based PoS payment / verification system (likely it is already deployed, I don't live there so I don't know). What happens to that now?
When the Government of India (GoI) mandated Aadhar for provision of many services (subsidies, marriage certificates, death certificates, collect taxes- people without aadhar can no longer pay income tax - etc) it was challenged legally in the courts. One of the main arguments was that Indian citizens had a fundamental right to privacy, and such 'enforced' collection of biometrics violated that right.
The Attorney General (appearing for the government) argued that there was no such fundamental right, and that citizens had no right to privacy.
This (whether or not privacy is a fundamental right) had to be resolved before these cases could move forward.
So the question was 'forwarded' to a 9 judge 'constitutional bench' to rule upon. Today all 9 judges ruled that Indian citizens had a fundamental right to privacy.
so now the Aadhar specific cases can go forward, now that there is a 'constitutional bench' ruling. A 5 judge bench will now consider those cases and rule upon the legality of Aadhar enforcement.
This ruling, that privacy is a fundamental right, will obviously affect the outcome of the Aadhar specific case(s) but how exactly - including what restrictions if any, could be placed on biometric collection via aadhar - is not known (yet).
That is my non lawyerly understanding of where things stand.
So, basically, this has opened the door to debate about the legality of collecting biometrics, but we still have to wait for official rulings to see if a stop is put to collecting that data under the Aadhar umbrella?
This is a 'high level' ruling, which unlocks the 'deadlock' on the cases about the legality (or otherwise) of biometric collection via Aadhar for specific government schemes.
The Attorney General's argument that citizens have no fundamental right to privacy has been invalidated/overruled/whatever-the-correct-legal-term-is, by the constitutional bench. He (and his team) have to find new arguments now. [1]
The lawyers of both sides on those cases, now have to proceed on the assumption that privacy is a fundamental right. The pro-govt (so pro -aadhar) side will likely argue for 'reasonable restrictions' on the right. The anti govt side will likely argue that such restrictions are not 'reasonable' and that aadhar violates fundamental rights (or so my lawyer friends tell me [2]).
[1] Tangential: The AG who made that argument has retired, and there is a new AG who will appear for the government.
[2] They are probably oversimplifying, so I can get the gist, the same way I would if I had to explain some complex programming to them. I'm not a lawyer. :-)
“Privacy is about the freedom of thought, conscience and individual autonomy and none of the fundamental rights can be exercised without assuming certain sense of privacy”. argued Mr.Subramaniam.
It would be interesting to see if there are more specifics w.r.t data security in the judgements. I smell a criminal lawyer cooking up the ways this judgement would aid his clients for not opening their computer, smartphones to police!
The judgement would be widely shared worldwide, the people outside India who isn't familiar with Supreme court judgements from India; keep Merriam-Webster nearby.
The plea is also about invalidating Aadhar, if that is also done it would be a huge setback to all developmental activities. A safeguarded, private Aadhar is the way to go in my opinion.
Corruption is hardly a technology issue, especially in an environment where corruption is so passe and enjoys patronage from the entirety of the polictical spectrum. Example, to disrupt the blackmarket of kerosene they started dyeing it, and that mattered zilch, because people were selling and buying dyed kereosene in the blackmarket without batting an eyelid. Everyone looked the otherway... wink wink.
I doubt that is anything new. Political parties in power try to squelch the money stream of its competitors. Aadhaar or no Aadhaar they will find a way and have (sometimes they would rather look the otherway and share the 'profits').
On a related but tangential set of events: none of the bigwigs caught in the demonetization net had connections with the current party in power, but had patrons among the others. It is possible that the current party (/alliance) is so pristine and pure that they none of their members have any link with the illegal cash hoarders and there is no actionable evidence. I just dont find that a realistic explanation. A claim like that will need a lot stronger evidence.
But anyway, you did not comment on the fact that corruption is not a technological problem and technology will not solve it (and has not solved it). It still would be great to know why would Aadhaar succeed where others have not.
BTW I am sincerely willing to be convinced, but I do swear by the guideline that exceptional claims need comparably exceptional evidence or a reason.
You may think I don't have an argument and rightfully so, but honestly I don't care enough to search for all the news items where this was established.
Not at all. I want to learn and soak in the opinion and form/reform my own. I am quite sure citizens on the different sides of this argument have sincere good intentions as their motivations.
On the one hand Aadhar is so convenient. If I want a phone number or a bank account, I can simply identify myself with my thumbprints and iris scans and get it activated immediately without paperwork. This has really made things easier for people. Using biometrics also reduces fraud when claiming benefits from the government and maybe makes the process easier as there is again no paperwork, and it is easy to make claims.
But on the other hand, all this makes it so easy to track anyone. All your bank accounts, cards, phone numbers, internet connections would be linked to your Aaadhar number and would be centrally accessible. This is a privacy nightmare. I am already getting frequent messages from my phone company to link my phone number with my Aadhar number, or let it be deactivated.
All this information would be in the hands of government officials. The Indian bureaucracy is notorious for the corruption everywhere. What if you could purchase somebody's data through an "agent" - get access to everything that they do, everything they buy, everyone they transact with, everyone they communicate with, contents of every message they send to anyone at all - imagine the kind of possibilities this opens up for negative minds.
Besides this, someone could just hack the data and maybe leak all of it. Someone recently created an app that would let you get anyone's details including their phone number, address, etc. by typing in their Aadhar number. It was taken down a month ago. I'm not sure about the exploit but it was related to using plain http instead of https somewhere. I checked one of the Aadhar linked projects and found that they were using an open source library in the backend which wasn't up to date, and the version being used had some documented security vulnerabilities. I wonder how safe peoples' data really is.
A large number of Aadhar numbers have already been leaked thanks to government websites. It is possible to extract a person's fingerprint or iris scan using photos of their hands or the face in specific conditions. If the person has linked their bank account with Aadhar which is getting compulsory, one could take out money from their accounts by impersonating their prints or iris scans. Fortunately there is an option to protect yourself from this - go to the Aadhar website and lock your biometrics data. If used regularly this can protect people from "biometrics theft", but the biometrics are unlocked by default, and for 99% of the people they are going to stay that way.
An amazing talk from couple weeks ago on the details of Aadhaar and how it was "implemented" and why this court ruling is super important both in India and closer to the west: https://www.youtube.com/watch?v=iCkhupMROZU
After 70 years of independence - right to privacy is recognised as a fundamental right by the Supreme Court of India. Individual rights especially privacy underlie the cornerstone of democracy - Liberty. A small step for Indian Supreme Court - a giant leap for 1/5th of mankind!
I'm not sure if I read it here, but there was a great example given on how to answer people with approach of "if you are not doing anything wrong, you have nothing to hide".
Using this logic, just recently I somewhat won an argument with my fiancee. She always believes that I'm hiding something on my phone because she doesn't have PIN to it and because I'm unwilling to give it to her, she assumes the worst.
Therefore I made a bet. I asked her what is she doing in bathroom? She answered she does what everyone else's is doing: #1, #2 or showering. I replied you must be doing something wrong or maybe illegal, since you always not only close the door, but you lock it as well! We had short argument back and forth about obviously how it is not about hiding something, but rather about enjoying your own time in privacy, and I think she kind of got it.
We have a bet in place for 3 months now that when she leaves the door wide open while in bathroom, I will give her code to my cellphone. So far I haven't had the need to give it out just yet :)
Privacy is a tricky thing to make a right in terms of where you draw the line. Hidden cameras in the bedroom illegal, but a right to a private table at restaurants wouldn't be practical.
I'm not quite sure where you'd set the boundaries.
It didn't really help push them to operate out of Germany, and the German constitutional court established privacy as a fundamental right in 1983. So ... hopefully, but I wouldn't hold my breath.
They also made sexual orientation a right as well. read further into this ruling, it is just more than privacy at the top level. they went on to make sure people/prosecutors understand what they really mean
I'm not sure what this has to do with Aadhaar, although the initial petition mentions it I think.
Aadhaar is setup as a way of proof of identity and not proof of citizenship. I for one did not get an Aadhaar until a week ago! The only reason I had to was a company that I applied to, said that please use your full name as mentioned on your Aadhaar card.
India is a bureaucratic mess. And as UG Krishnamurti put it very succinctly, India is a failed country. As mentioned elsewhere in this thread, we desperately first need to focus on poverty first.
> India is a bureaucratic mess. And as UG Krishnamurti put it very succinctly, India is a failed country. As mentioned elsewhere in this thread, we desperately first need to focus on poverty first.
Poverty is difficult to address in a nation as large as India. Such a problem quickly approaches intractability. What are some solutions you envision to help alleviate poverty? There could very well be a huge opportunity for a startup in this space.
I feel like without requiring Aadhaar for benefits, it's impossible to ascertain or measure who is really under the poverty line or not.
> Aadhaar is setup as a way of proof of identity and not proof of citizenship.
Yet, Aadhaar is officially accepted by the Ministry of External Affairs as proof of identity and proof of address to issue a passport (which is signed by the president of India and is a proof of citizenship). [1] So any resident in India who qualifies for Aadhaar can also get a passport. Aadhaar is sneaky and messy in more ways than one.
All bureaucracies are a mess. Just because UG K. was succinct, doesnt mean he was right. India is actually doing better relatively to ANY other country at the moment.
This is currently a grey area. All ISPs in India have to abide by their licensing terms with the Department of Telecommunication which restricts encryption to 40 bit RSA or equivalent. Any higher grade encryption can only be used with special permission and requires the decryption keys to be submitted to the DoT.
Whether or not this restriction also applies to end users and non-ISP organizations hasn't yet been tested in the judicial system AFAIK.
You have a link to that? Either way, I'm not sure how that would be implemented, other than outright blocking sites that are HTTPS-only. But I don't think blocking Google, Facebook, Whatsapp and other major websites is going to fly. I have no doubt that the Indian government would like to read people's communications and internet history, but that's not possible today.
AFAIK, the government has not attempted to prosecute anyone for using stronger encryption, and other government departments/organizations have made conflicting recommendations, especially when it comes to online banking and capital markets. Barring new regulations that clarify the government's position, the status quo is that ISPs cannot apply strong encryption themselves, but are not obligated to prevent their users from doing so.
At least one ISP has gone beyond this mandate and tried to block the use of stronger encryption by their customers[0].
Currently, Indian govt is making it mandatory for everyone to have AADHAR card(enrolment of which requires biometric scan) for basic services like opening bank account, provident fund, filing income tax returns etc, making it necessary for everyone to enroll for AADHAR.
This judgement will be used for removal of AADHAR requirement.
Thats moot unless every significant access point has a means and financial viability to verify the biometrics.
Even with such existing 'weaker' identities we are nowhere close to the quality of service that such 'weak' identies can support. Lets address the problem and not divert the issue with "shiny tech... look a squirrel". I would be more sympathetic if we are already in the ballpark of the quality of service that these 'weak' identities can support and we are getting bottlenecked there.
To put it charitably, with Aadhaar we are optimizing something that is not the bottlneck.
Right to privacy here mean, govt cannot force citizens to give up their biometric for simple things like creation of bank accounts.
Till now, PAN card was the only identification needed.
I think this is needless alarmism. I am glad due process was followed, and what was previously a grey area has now been made clear.
You must read the judgement & the cases they cite before making such blanket, unsubstantiated assertions. There's been a history of cases that this judgement rests on, many of which guided & led to the conclusions drawn by this 9 panel of judges. [1]
I don't understand what value a blanket statement such as this adds to the conversation. Do you believe things were better in the 1970s? 1980s? If so, please substantiate your belief with evidence.
Do you subscribe to the trivial, cynical notion that our society is going to dogs? if so, let us have a conversation on why I disagree. But seemingly empty, vacuous but emotive statements such as these do not necessarily lend themselves to constructive discussion, IMO.
When considering the fact it took close to two years to even constitute a bench to hear this case, it doesn't really sound alarmist to me. Plus, many Aadhaar related cases have been pending hearing for years now while the government blatantly ignored multiple directives from the Supreme Court to keep it optional and not deprive anyone of any benefit "until the matter is decided one way or another" (paraphrasing what the court said).
Aadhaar could still be a fait accompli for the government and continue, which would be sad in many ways. If you believe Aadhaar is the best thing since sliced bread and has no issues, please check Rethink Aadhaar [1] for the issues as well as the history of the cases and have a look at Scroll's Identity Project. [2]
Privacy : You have a right to try to keep things as private as you want. You should not be prosecuted for merely trying to keep things private.
Your responsibility :
1. Don't share things that you want to keep private.
2. Carefully weigh the trade offs when you agree to share things about you. There is no retroactive privacy on things that you yourself shared.
3. You can attempt to retract what was shared about you, but you can't hold society responsible for successful retraction of that piece of information, from media or minds. You can add addendum e.g. an apology from someone, you can claim damages, but we can't rewind time.
Government responsibility:
1. Don't criminalize people trying to keep things private. This would be similar USA Fifth Amendment, do not force people to share what they don't want to share. Government can ask "What crimes you committed in the privacy of your home?", but it can't force people to answer that question or punish for not answering it.
2. You can't plead fifth and deny proving your identity when you want to take food stamps from government, or when you get unearned tax credit. Just like in any transaction, Government can ask you to prove who you are and may demand increasing levels of proof depending on the transaction. Your choice would be to not participate in such transactions, in certain situations you implicitly give permission to Government to demand proof of identity from you, e.g. if you request a loan to dig a well or subsidy to buy fertilizer or collecting unemployment benefit. Security of exchange of money from government to people is Government's responsibility and it may demand increasing levels of identification depending on the nature of the transaction, as deemed appropriate by abused observed or potential for abuse. In places with high corruption rates, strong identification would be required and would be appropriate. I don't think people would be OK if someone collects their pension using just name, address and birth date, and government throwing hands in the air accusing you for not protecting your name, address and birth date.
What you can't do:
1. Make the world forget what it already knows. Can't ask Google to delete a piece of information about you from entire internet, once you yourself post it on Blogger. You can delete the post from Google, you can delete your account, but you must realize that once something is not private, you have no control over who has seen it and how many formats/copies of that information got created.
2. Get into a contract to drop certain privacy and then deny fulfilling the contract because of privacy rights. E.g. a model can't say that she won't show her face on a fashion ramp because of privacy after taking payment. A storybook author can't say that she won't share her book with publisher because of privacy after taking payment.
3. Make a demand that a private entity, on its private premises, can't have monitoring equipment. A store may decide to have cameras at the self checkout lanes, and it may deny self checkout to folks with full face covering. Your choice would be to not shop at such places, you can't use law to shut down the business's ability to monitor their private premise as they wish. An employer may make alcohol breath analyzer test required e.g. for a surgeon before surgery, a pilot, air traffic control at the start of the duty, or a long distance train driver. The employees in this case can't claim privacy rights to deny such tests.
4. When you are in public place e.g. a sidewalk, you are participating in a public endeavor that comes with you dropping the privacy protection e.g. compared to what you would get in your bedroom. The rays of light that bounce off of you or your belonging are fair game to be captured. Photographers do not need to take your permission to capture rays of light that are travelling in their direction when they stand on a public place or a private place they own or a private place where the owner has given them permission to capture the rays. Those photographs can only be used for personal consumption or for non-profit activities e.g. an investigation, news reporting. Any commercial use of the photo e.g. in an product advertisement, would require release agreement from the person in the photo.
I think Strong Privacy and Strong Identification both are required, for some things they are mutually exclusive, in some parts you trade one for another. Authentication/Authorization/Encryption/Non-Repudiation is needed to deliver these rights.
Consider this, if privacy laws are absolute in every aspect of life then you can't have antitrust laws that stop competitors from fixing prices or agreeing to anti-competitive behavior. If privacy laws are absolute then smartphone apps that capture photo/video of an crime unfolding won't be allowed due to privacy concerns of the criminal. If you can keep something private (lock the door to your room, your safe deposit box), no one will force you to expose it, but one can't demand privacy in situations that naturally expose information to others, unless you explicitly set the expectation of privacy (attorney-client, doctor-patient, a service provider) as part of a contract. Government may make laws to cover most common situations e.g. your real estate agent sharing your budget with the seller of the property, your medical records etc.
Privacy law is natural. What I draw and erase on a doodle board in the privacy of my home is my business, you can't force me to divulge it. What I say in my head to myself is my business, there is no thought crime. What I sing when on a trail is my business, no one can force me to say which song I sung. When government or corporation tries to invade the natural privacy, it should be stopped. In that regard, privacy is a fundamental right. But, privacy can't be claimed to hide criminal record from your neighbors or employers.
Privacy though, privacy is like speech or equality before the law or presumption of innocence. You have it by default and if it’s denied there is a culprit.
Even in this case, we seem to have a hard time expanding rights. I say expanding, but privacy is a right in many places, formally. But, the interpretation of that right is very weak.
Anyway… if we’re to make privacy a right with serious intent then there needs to be a willingness to break eggs, bear a cost. The right to free speech, conscience, affiliation , assembly and other political freedoms mean we need to tolerate and protect the proverbial nazis’ rights to try and spread their politics. Bitter pill for anyone scared of a proverbial nazi takeover.
Are we willing to bear the (fear-based, mostly) costs in the fight against the terrorism demon. The economic costs that will be claimed by companies relying on data? If we have a strong yes, I think we can start building the real framework of laws and conventions that will secure a right to privacy for the next few generations.
Absolute principles require some sacrifice.