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Right to Privacy at stake amid COVID-19 crisis

March 28, 2020

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Right to Privacy at stake amid COVID-19 crisis

Bengaluru, Karnataka: On January 30, India reported its first COVID-19 case. In the next two months, the cases kept increasing. Over a period of time, several government agencies revealed personal details of affected patients, breaching their privacy.

Several instances of privacy breach took place through the publication of media reports, uploading on government websites and also by marking houses. On March 21, a list of over 400 quarantined people in Nagpur was made public by state authorities. In Mumbai, complete details of over 100 quarantined residents of the Borivali-Dahisar area started circulating on WhatsApp. Similar stories were reported from Punjab, Delhi, Kolkata and Rajasthan.

The Karnataka government published the details of over 19,000 international passengers who had arrived at Bengaluru from March 8. Later, a list of over 14,000 Bengaluru residents, along with their addresses and other details, was circulating on social media.

Kamayani Bali Mahabal, a Mumbai-based human rights lawyer and activist, stated that such practices enable discrimination, denial of essential health care and food items, and even leading to instances where the people placed under quarantine are evicted by landlords and apartment societies.

“Circulation of such lists is eroding social solidarity and replacing it with private vigilantism which will cause tremendous harm to the collaborative efforts needed to overcome COVID-19,” she added.

Dr Vishwakirti Bhan Chhabra, the co-founder of The Mind Research Foundation (a group of mental health professionals), stated that there are the psychological impacts of public health measures like quarantine and unwarranted disclosure of private information of people during these times lead to public shaming of individuals.

Quarantine measures and other restrictions to everyday practices are anyway stressful and isolating; on top of that any infringement to privacy can leave people vulnerable to the distressing effects of isolation, he mentioned.

To ensure social distancing: Officials

While questions are being raised against this kind of privacy breach, officials maintain that these steps are being taken so that people ensure social distancing.

B.H.Anil Kumar, Commissioner of Bengaluru municipal corporation, tweeted the list, saying, “The list of all persons in 14-day home quarantine can be found in this link along with the end date. Helps citizens to #StayHome #StaySafe.”

Isha Pant, Deputy Commissioner of Police (Command Centre) and nodal officer managing COVID-19 crisis, stated that the aim of publishing lists is to ensure that people maintain social distancing and nobody should take it otherwise.

Bhaskar Rao, Bengaluru city police commissioner, stated that several people were seen violating self-quarantine measures, and the list was uploaded to ensure that they stay at their homes, according to Bangalore Mirror.

The Karnataka government launched an application called Corona Watch which shows the travel history of a COVID-19 patient. While the names are absent, one can easily spot the person combining it with the earlier list.

An entrepreneur Swaroop Hegde took to Twitter to expressed his anguish over the decision of Karnataka government. He tweeted, “I’ve been retroactively added to a Karnataka government watchlist for anyone [who] arrived in March, and should be home quarantined that was voluntarily and it ends in three days. Don’t want to complain but why does a public document need to have my private information to the last detail? What a complete mess, paranoid neighbours at my passport address created a ruckus, thanks to false rumours spread over a WhatsApp group. I am not even self-quarantined there and I don’t know who to blame more, the authorities who made the details public incorrectly or the herd.”

It is a poor public policy choice at the time of a pandemic and sharing of information weakens social solidarity that is needed to counter this shared and unprecedented social challenge which is literally turning neighbour against neighbour, stated Kamayani.

In some societies in the city of Bengaluru, the published list has already wreaked havoc for residents.

Tinu Cherian Abraham, a political commentator, in a tweet, stated that he doubted the authenticity of the list as he landed on March 10, but wasn’t able to find his own details. He added that though he was unsure of the list’s accuracy, he admitted that its’ a huge privacy issue and it could lead to a witch hunt of people and put lives of a lot of people at risk as the social implications of putting such a list of people in the public domain will be huge.

Replying to Abraham’s tweet, Chandra R Srikanth, Consulting Editor with ET NOW, business news channel, she stated that she found her name on the list, and knew that many people are facing trouble in their societies due to it. She added that the list is unnecessary, considering that these people have been hand-stamped, served notice and are at home.

To be treated like common criminals is terrible especially with residents welfare association vigilantes around, she commented.

Brinelle D’Souza, Assistant Professor with the Tata Institute of Social Sciences (Mumbai campus), stated that displaying names of such persons is not only a breach of confidentiality but also doesn’t ensure the containment of the disease, rather, it gives a false sense of security that no one else will be infected.

These are arbitrary and reactionary measures, and don’t serve the purpose and would instead cause fear, isolation and stigmatisation, she mentioned.

Such measures will drive the disease underground, as people will not come forward for testing, and will likely worsen the situation, she added.

Publishing details against law: Experts

Law experts are of the opinion that publication of such lists is against the precedents set by the Supreme Court and several other regulations.

Lawyer Kamayani stated that the law in this regard has been set out in the K.S. Puttuswamy v. Union of India case in which the SC upheld the right to privacy as a fundamental right and a one-page order signed by all nine judges declared the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part 3 of the Constitution.

“An unauthorised parting of the medical records of an individual which have been furnished to a hospital will amount to an invasion of privacy. On the other hand, the state may assert a legitimate interest in analysing data borne from hospital records to understand and deal with a public health epidemic such as malaria or dengue to obviate a serious impact on the population. If the State preserves the anonymity of the individual it could legitimately assert a valid state interest in the preservation of public health to design appropriate policy interventions on the basis of the data available to it,” the order stated.

According to Regulation 2.2 of the Indian Medical Council Regulations, physicians are required to maintain confidentiality. Since most of the personally identifiable information about COVID-19 quarantined individuals is being disseminated through digital modes, it is further in breach of 3(V) of the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011.

Apar Gupta, Executive Director of the Internet Freedom Foundation (an organisation advocating digital liberty), wrote a letter to the Union health minister requesting him to issue an advisory to the health departments of various state governments to exercise their powers under Section 2 of the Epidemic Diseases Act, 1897.

Under Section 2 of the Epidemic Diseases Act, 1897, the Union health minister can issue an advisory to prevent the dissemination of any such lists by public authorities or private persons. Such sensitive personal information must be limited to public officials who are authorised under the law and should follow a strict chain of custody, it added.

Such disclosures include the name and addresses of persons placed in quarantine making them personally identifiable and this is a core digital rights issue as such lists are being widely disseminated on social media and internet-enabled messaging groups, stated Apar.

He added that the publication or leakage of such lists of quarantines is illegal and it violates the fundamental right to privacy which then enables second-order harms and weakens social solidarity and it draws suspicion and increases discriminatory behaviour.

A Mumbai-based people’s health movement wrote an open letter for stating that continued surveillance of such individuals can be done without resorting to such exposure of identity and the concerned public health official can monitor the person, something which is routinely done by cab-aggregators like Ola and Uber.

The person’s consent for this should be taken at the airport itself for this surveillance of a maximum of four weeks, the letter added.

Sidharth Deb, policy and parliamentary counsel with the Internet Freedom Foundation (an NGO advocating digital liberty), stated that apart from the privacy breach, quarantined people and their families also suffer second-degree problems.

These include discrimination within communities, denial of sale of medicines, possible denial of healthcare, denial of access to food items, and instances certain instances where quarantined persons are evicted by landlords, he added.

People’s health records or information which relates to their health records falls under sensitive personal data, and these should be afforded a higher degree of protection when it comes to privacy protections, he mentioned.

Therefore, publishing of these details is an egregious policy violation and requires an immediate remedy, he added.