The highest constitutional court has today cleared all doubts as to whether privacy is a fundamental right under Indian Constitution. The question of privacy is obviously an important one in this era when information technology, broadly called, is not only punctuating but are virtually taking over our lives. Technology has made a many hitherto impossible things possible, and has many improbable things certain and many processes more efficient – and in many cases so advanced that “it is indistinguishable from magic,” as the British science-fiction writer, Arthur C. Clarke put it. The methods by which a person’s legal rights may be infringed have also undergone a similar transformation. Infringments of privacy therefore by state and non-state actors has come to be a real danger of our contemporary times and it required a strong articulation as a fundamental right and it is a major relief that it has come from the Supreme Court.
Other than privacy, there are other legal problems that arise with increase of use of technology. For instance, the increasing use of technology and algorithms for decision making. In Aadhaar, the use of proprietary biometric matching algorithms to determine substantive legal status of identity is one such example. Can a state authority delegate such essential function of decision making that determine and affect rights of other parties to the device of technology? If so, what would be the parameters to make sure it is just and not arbitrary? Merely because it is technology, would there be a legal presumption against arbitrariness? If so, would such a presumption be rebuttable or irrebuttable? If such a presumption is rebuttable, how can one go about rebutting such a presumption? Similarly can it be presumed to be non-discriminatory?
We have seen instances for example where facial recognition algorithms that appear to work better for caucasian faces, but not so for coloured faces. Given the asymmetry of information on the working of the technology – where in most cases, the algorithm developer and the technology provider know obviously more about the working of the technical system than person’s whose interests are affected by it, on who should the burden of proof lie if there is a question of either arbitrariness or discrimination in the working of the algorithm? If every technology assisted decision making must be provably non-arbitrary and non-discriminatory, what standard of proof is an acceptable standard of proof for various applications?
Even if we were to assume that technology may not be used as the final word and it may only be technology assisted human decision making, say, in the matter of criminal sentencing where a predictive algorithm is used to determine the appropriate sentence, what would be the legal principles in dealing with the bias that such a technical assistance provides to the final deciding authority? This is by no means an exhaustive list.
It must therefore be borne in mind that technology gives a sense of benevolent determinism to many of our life’s problems, which may turn out to be false many a time. As methods of incursion into our rights become more sophisticated, so should our means of asserting them and warding off such incursions, by demanding a more robust standard of the technology in question having to be provably rights- preserving.
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