App for one season: on Centre’s directive to use Arogya Setu

The Centre’s national directive for the mandatory use of its contact tracing app, Aarogya Setu, as part of its COVID-19 combat measures, falls short of established legal standards for the protection of privacy. The first requirement laid down by the Supreme Court in K.S. Puttaswamy, namely, a law authorising the involuntary use of such an app, has not been fulfilled. The government has no power to make the app’s use compulsory without legislative authorisation. There is no legislative guidance for the app’s purpose, functioning, and the nature of the use of the sensitive personal data it collects. Going by the directive issued under the Disaster Management Act, all people residing in ‘containment zones’, all government and public sector staff and all employees, both public and private, who are allowed to work during the lockdown, will have to download the app, which also cautions against not keeping the phone’s location and Bluetooth on. Lawyers and activists have raised concerns not only over privacy; they also fear that assessments made on the basis of information collected may be used to restrict public movement and access. The absence of a sunset clause or a rule limiting the purpose for which the data can be used or spelling out the entities authorised to use them are all valid concerns. Some, like Congress leader Rahul Gandhi, fear it could become a surveillance tool.

However, Aarogya Setu seems to be quite popular — downloads have crossed 75 million. And what the government has going for itself is that many countries are implementing mobile app use for contact tracing. More and more governments are introducing applications for automated location services to trace the contacts of those infected. India should abide by best practices elsewhere. The EU has laid down guidelines to the effect that such app use should be voluntary, that it should preserve user privacy and should not be used after it becomes no longer necessary. Israel’s Supreme Court recently struck down emergency powers given to the country’s intelligence agency to trace the phone location of COVID-19 patients without enabling legislation. Australia’s tracking app has sparked privacy concerns, but the government has released a privacy impact assessment. While the intention behind the app’s introduction may be good — as it is a given that the government is keen on doing everything possible to keep a watch on the spread of the virus so that the lockdown, as well as relaxations given to zones based on colour-coding, are effective — it would be well-advised to heed privacy concerns raised by the Opposition, allay fears that it may become a permanent mass surveillance instrument and ensure that there is sufficient anonymising of data and its limited access. It has a duty to resort to methods that cause the least harm.

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