The fourth chapter of the Economic Survey 2018-19 is entitled Data “Of the People, By the People, For the People”. It perhaps would be appropriate to quote relevant excerpts from that chapter to put the government’s thinking on commercial exploitation of data that it seems to be contemplating in a context.
“The private sector may be granted access to select databases for commercial use. Consistent with the notion of data as a public good, there is no reason to preclude commercial use of this data for profit. Undoubtedly, the data revolution envisioned here is going to cost funds. Although the social benefits would far exceed the cost to the government, at least a part of the generated data should be monetised to ease the pressure on government finances. Given that the private sector has the potential to reap massive dividends from this data, it is only fair to charge them for its use. …Alternatively, datasets may be sold to analytics agencies that process the data, generate insights, and sell the insights further to the corporate sector, which may in turn use these insights to predict demand, discover untapped markets or innovate new products. Either way, there is tremendous scope for the private sector to benefit from the data and they should be allowed to do so, at a charge. Fortunately, stringent technological mechanisms exist to safeguard data privacy and confidentiality even while allowing the private sector to benefit from the data.”
While on the face of it this formulation may sound innocuous there is a portentous danger that lurks over the horizon. The greatest stockpile of data with the government is not the data of citizens that is scattered across government departments that can be collated and monetised, as the Economic Survey would want us to believe.
The treasure trove in fact is the core biometrics and the intimate personal data of 1.22 billion citizens collected over nine years under the Aadhaar programme. This is the data that could be in clear and present danger of being monetised under the subterfuge of anonymisation and randomisation for it is available, organised and commercially lucrative.
It is another matter that even what the Economic Survey is proposing is also a non-sequitor. The personal data of individuals, citizens and non-citizens alike scattered across the government space, is held by it in a fiduciary capacity and cannot be used for commercial gain under any or all circumstances.
Ironically, the Economic Survey was tabled on the very day the Lok Sabha was debating the Aadhaar and other Laws (Amendment) Bill, 2019, in the Lok Sabha that inter alia had been brought to give effect to two seminal judgments of the Supreme Court of India, namely the August 24, 2017, Constitution Bench judgment that upheld 9-0 the right to privacy to be a fundamental right and the September 26, 2018, five-judge bench judgment that upheld the constitutional validity of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016. Both the judgments were the outcome of a legal challenge mounted by Justice K.S. Puttaswamy (Retd.) and others to the Aadhaar Act.
The latter judgment struck down certain aspects of the said act, especially those provisions that sought to reduce human existence to a single number, by making Aadhaar a mandatory pre-requisite to access public and private services, thereby laying the foundations of a surveillance/nanny state. It especially struck down as ultra vires that part of Section 57 that allowed the government to share Aadhaar data with corporate entities.
It is another matter that the government has insidiously brought that paradigm in through the backdoor again by amending the Indian Telegraph Act, 1885, and the Prevention of Money Laundering Act, 2002, by adding the word “voluntarily” to legitimise the continuing access that corporate entities have to the Aadhaar ecosystem under the pretext that it is being voluntarily shared with these companies by individuals notwithstanding the apex court having put an explicit bar on the same. What is an unsaid spin-off but perhaps the real purpose of this proposed amendment is that it would retrospectively, ipso facto, validate the mountains of data shared with and held by corporate entities before the said Section 57 was declared ultra vires by the Supreme Court.
During the past few years the catchphrase that data is the new oil has been cavalierly bandied about. Herein lies the problem: if data is the new oil, what stops the government from becoming the new data refinery?
If we were to accede to the logic that data is the new oil, then a data refinery is but its logical extension. It would mean that new sources of crude data would have to be provisioned to enable this enterprise to generate revenue from this resource. Raw data from multiple sources would flow into this factory, including people-contributed proprietary data, procured data, open source data and streaming data. The enterprise would then crunch the data to create new intellectual properties through a combination of processes proprietary information, domain expertise, analytics, software and permutations of datasets. This freshly cultured data would then be stored in databases customised to the mode and gauge of the data just as oil derivatives such as gasoline, heating fuel and motor oil are stored in various cisterns. The refined data products would then be disseminated to consumers over the Internet as analytic acumen or used to foster new products. The most readily available raw material for this data refinery project is the intimate information of people that resides with the government under the Aadhaar programme.
Herein lies the ethical conundrum; should core human data, primarily human biometrics, be monetised, irrespective of the purported public interest sought to be advocated, by designating it as a public good? This data was not procured by allowing people to make a choice premised on a properly explained basis as to what parting with intimate personal information may entail in the future, what in legal parlance is called the doctrine of informed consent. It was just taken by promising a card that would unlock the gates to utopia just like a lot of things are taken or withheld from the people of India, for example access to their own savings during demonetisation.
That is primarily the problem with the Aadhaar programme even today after clothing it in a holistic legal architecture. The doctrine of informed consent was never a viable option in the past and it does not work even now because more often than people are offered a stark black-and-white choice, either validate your identity on the Aadhaar platform or be denied the service/goods that you seek to access.
The time has come to take a fresh look at the entire Aadhaar programme if we the people are not to become new oil for the data refinery called the Government of India....