The Aarogya Setu app- Is it a breach of Privacy?

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This post has been written by Eishani Patnaik, a 2nd year law student of National Law University Odisha

Introduction

Amidst the increasing chaos of the global pandemic of Covid-19, the Government of India is consistently on its toes to curb further spread of it, by taking all necessary and extreme measures possible in this particularly sensitive scenario. Previously, Prime Minister Modi announced a 21-day countrywide lockdown to combat and to contain the spread of the highly contagious virus, which has been subject to further extension till 17 May, 2020.

Recently, on account of the Bhartiya Janata Party’s 40th anniversary, the Prime Minister proposed for the installation of the Aarogya- Setu app in order to spread awareness among the citizens on the novel coronavirus outbreak in India. In pursuance to this, the Union Government has launched this new application that will help people track Covid-19 infections more accurately, effectively and efficiently. The app has been developed by the National Informatics Centre that comes under the Ministry of Electronics and Information Technology. This article discusses the necessity of this application alongwith the legal concerns and implications associated with it, in the current times.

What is the Aarogya Setu app?

It is fundamentally, a Bluetooth based Covid-19 tracking app, available on Google playstore for Android phones and on Appstore for Iphones. Its main objective is to supplement the existing initiatives of the Government of India in proactively reaching out to the users of the app, regarding the risks posed by this deadly virus and the relevant advisories which need to be taken regarding the early containment of the virus. It supports eleven languages. Basically, it uses the smartphone’s GPS system and Bluetooth to provide information which would help in determining whether you have been in near proximity to a possible Covid-19 infected person or not.

How does it work and why is it necessary?

Instead of relying on human memory of the patient, contact-tracing apps like Aarogya- Setu make possible for others who may have come in contact with a COVID-19 positive patient to know so, immediately. Once someone tests positive or shows certain relevant symptoms, she or he enters that information on the app. The app alerts all those who came in touch with the infected or even the possibly infected patient who is unwell, because the app has already recorded that information.

In these trying times of the Covid-19 emergency resulting in the mortality rate increasing by huge margins, the significance of an early detection of the virus is indisputable.

  • This app not only ensures effective awareness regarding the virus but also helps individuals in preventing the risk of contracting the virus from an infected person. It determines if a person is at likely risk, by scanning through its own database of confirmed Covid-19 positive cases across India and also uses its ‘location’ feature for doing so. A user should set his location as “Always” on installing the application.
  • Once you are into the app, the app will scan your location and share your data with the government in case you’ve been tested positive for coronavirus or have been in close contact with a person who was tested positive. This will help in prohibiting possible spread of the virus as the app will intimate you if you cross roads with an infected person within a distance of six feet.
  • It has a tool for self-testing. The user is asked to answer a number of questions. In case some of the answers suggest Covid symptoms, the information will be sent to a government server. The data will then help the government take timely steps and initiate the isolation procedure, if essential.
  • The app also contains instructions on how to self isolate and what to do in case you develop symptoms. Moreover, the app recommends several measures to the user such as Self Assessment Test, Social distancing and do’s and don’ts amid the pandemic alongwith informing him about the precautionary measures.
  • Besides, it promises to ensure complete data encryption of the user alongwith having a chatbot which asks you a series of questions to check if you have any symptoms of Covid-19, as well as informs you about the various facilities and updates from the Health ministry accompanied with a series of helpline numbers nationally and state-wise.

Hence, with the launch of this app, the governments seeks to limit the spread of the Covid-19 cases in India via technology and artificial intelligence as well as, help create self awareness among the citizens with relevant and essential information on the infection.

What are the legality concerns?

The major concern relating to the launch of the application is the alleged invasion of privacy and threat to the personal data of the users of the app being leaked to the Government for unintended purposes. There have also been divergent views and qualms regarding how effective, the technology used, will really be, in accurately determining the possibility of a positive Covid-19 patient.

The app has been designed in such a way so as to encourage a chat friendly interface and in a way to invite people to disclose their personal and sensitive information voluntarily. In the process, not only does the Government get access to our names and date of birth but also to all our biometric information which may pose a great threat to the personal privacy of an individual. Adding to this, there are also concerns about the kind of data collected as there are no stringent limitations to monitor the purpose for which information is collected. There is always the possibility of private data of user to be misused and used in allocating resources to someone, which constitutes abuse of power and is illegitimate in nature.

Besides, there are also risks of misidentification (or a false-positives) if the device is switched or is shared between people. There was also a report on contact tracing apps by the New Delhi based Internet Freedom Foundation(IFF), which highlighted how algorithm-based predictive models to determine if an individual has tested positive for, deviates from how contact tracing usually works and has a material impact on people’s civil liberties.

There is no privacy policy in the app which can give any clarity on how secure the user’s data is. Moreover, there is no mention of any cyber security parameters and it doesn’t explain how it complies with the Information Technology Act 2000 and Information Technology Rules 2011. The app does not specify who all might be able to access user’s data in terms of governmental agencies. So, the chances of this data being used for monitoring people cannot be ruled out.

The Supreme Court, in the landmark case of, Justice K.S. Puttaswamy vs. Union of India, has held the privacy of an individual to be a fundamental right under Article 21 of the Constitution of India. It is protected as an intrinsic part of the right to life and personal liberty of an individual and as a part of the freedoms guaranteed by Part III of the Constitution.

The right to privacy also encompasses informational privacy. The judgement also clarified the stand on the importance of the establishment of an effective data protection law to protect informational privacy of an individual. Currently, the Information Technology Act 2000 deals with data privacy invasions and the punishment for such breaches. Any threat to the misuse of private information or sensitive personal data of an individual would be violative of the fundamental provisions of the Constitution guaranteed under Article 21 and hence unconstitutional.

 However, on the other hand, the right to privacy is not an absolute right and subject to reasonable restrictions under Article 19(2) of the Constitution or compelling state interest. Anything posing a threat to privacy would have to not only undergo the “just, fair and reasonable standard” but also fulfil the three fold test laid down in the KS Puttaswamy judgement.

Conclusion

It is indeed true that the necessity of an application like the Aarogya Setu is of utmost importance in the present situation of the global pandemic. As we grapple with this health, economic and humanitarian crisis of epic proportions, the immediate need is to develop a credible and safe measure which would address to all the requisite concerns alongwith duly protecting the informational privacy of an individual. However, there are umpteen reasons why the civil society is worried about contact-tracing apps, and why these apps have raised surveillance concerns, particularly in countries that don’t have good privacy protection measures in place. India does not have a particularly well established data protection regime as of now. It needs to be thoroughly reviewed. If these privacy concerns are not addressed, people will refuse to download the app, which will be detrimental to the economy and health of the country as a whole, in the long run.

REFERENCES

[1] Arfa Javaid, “Aarogya Setu App: What is it, its benefits, how to download and more”, https://www.jagranjosh.com/general-knowledge/aarogya-setu-app-1586848268-1 accessed on 4th May 2020.

[2] The Economic Times Online, “How to use Aarogya Setu app and find out if you have coronavirus symptoms”, https://economictimes.indiatimes.com/tech/software/how-to-use-aarogya-setu-app-and-find-out-if-you-have-covid-19-symptoms/articleshow/75023152.cms accessed on 4th May 2020.

[3] Aparna Banerjea, “Govt. launches Aarogya Setu, a coronavirus tracker app: all you need to know”, https://www.livemint.com/technology/apps/govt-launches-aarogya-setu-a-coronavirus-tracker-app-all-you-need-to-know-11585821224138.html accessed on 4th May 2020.

[4] Roshni Majumdar, “Coronavirus pandemic: Aarogya Setu app can help in contact tracing but privacy issues need to be addressed”, https://www.indiatoday.in/technology/features/story/coronavirus-pandemic-aarogya-setu-app-can-help-in-contact-tracing-but-privacy-issues-need-to-be-addressed-1667604-2020-04-16 accessed on 4th May 2020.

[5] Venkat Ananth, “Aarogya Setu’s not all that healthy for a person’s privacy”, https://economictimes.indiatimes.com/tech/software/aarogya-setus-not-all-that-healthy-for-a-persons-privacy/articleshow/75112687.cms accessed on 4th May 2020.

[6] Justice K.S. Puttaswamy(Retd.) v. Union of India and Ors., (2017) 10 SCC 1.

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