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Annals of Law

Will the Supreme Court judgement on privacy* render the Aadhaar Act unconstitutional?

Two points to note here. Privacy is a fundamental right, but like any other fundamental right, it’s not absolute. As Rahul Matthan explained in a Slack conversation, there is “a pretty standard formulation against which fundamental rights are tested”—existence of law, need and proportionality.

The petitioners will have to convince the bench that Aadhaar doesn’t pass these tests to get it declared unconstitutional.

In The Wire, Prashant Reddy, an Asst. Professor at NALSAR University of Law, argues that the probability of that happening is low, because the privacy argument is, well, weak. He takes us through three arguments petitioners’ lawyers are likely to make when that case comes up, and explains why they will not stand up to legal scrutiny.

* Ravikiran Rao’s piece in Pragati is a good primer. Also read the two part essay on the judgement by Gautam Bhatia (who assisted one of the petitioner’s counsel Arvind Datar).

Dept. of Privacy and Security

Anand V on a serious security issue he found with an eKYC sandbox.

eKYC is a key element of India Stack, that allows an agency—a bank, a telecom provider—to get ‘Know Your Customer’ details from UIDAI with the user consent. Sandbox, as Anand explains, is “a sanitised environment which allows experimenting with the eKYC functionality before going live.”

Inorganic seeding—adding Aadhaar number to another database, such as the ration card database, automatically without the involvement of users—accelerates Aadhaar adoption. But does it violate the principle that Aadhaar details are accessed only with the consent of the user? It’s not clear if this is a fallout of that option, but wrongly seeded Aadhaar number can cause financial harm. (Background: Consent isn’t enough to protect data. We need accountability: Rahul Matthan)

How to think about risks, by Nassim Nicholas Taleb

"Psychologists determine our 'paranoia' or 'risk aversion' by subjecting a person to a single experiment—then declare that humans are rationally challenged as there is an innate tendency to 'overestimate' small probabilities. It is as if the person will never again take any personal tail risk!"

Lessons from history

Humans are terrible at predicting the future. History offers some lessons about the future of tech, says Tim Harford. Two tips from the excellent piece.

  • First, the most influential new technologies are often humble and cheap. Mere affordability often counts for more than the beguiling complexity of an organic robot such as Rachael.
  • Second, new inventions do not appear in isolation, as Rachael and her fellow androids did. Instead, as we struggle to use them to their best advantage, they profoundly reshape the societies around us.

Tech doesn’t die fast. One in every six people still use a VCR.

Saving capitalism (and democracy) from capitalists

It’s futile to think about Aadhaar and data protection without looking at where data is going globally, and what big tech companies are doing with it.

Timothy Lee on how Google is losing friends from both the right and the left. 

“With so many Googlers in government, Google had an outsized influence on policymaking during the Obama years. But today, Google is in a different situation. Most obviously, Schmidt worked hard to get Hillary Clinton elected president, and Clinton lost.”

In a scathing piece, John Lanchester explains Facebook:

"What this means is that even more than it is in the advertising business, Facebook is in the surveillance business. Facebook, in fact, is the biggest surveillance-based enterprise in the history of mankind. It knows far, far more about you than the most intrusive government has ever known about its citizens. It’s amazing that people haven’t really understood this about the company."

Getting more and more data is a part of Facebook’s conscious AI strategy, in what looks like “let’s worry about algorithm later, let’s get as much data as we can” approach. Scott Berinato reports from Inside Facebook’s AI Workshop:

“To get more value, I can do three things,” he says. “I can improve the algorithm itself, make it more sophisticated. I can throw more and better data at the algorithm so that the existing code produces better results. And I can change the speed of experimentation to get more results faster.

“We focused on data and speed, not on a better algorithm.”

“The wishful story about how the Internet was creating a hyper-democratic “participatory culture” obscures the ways in which it is biased in favour of power,” writes Adrian Chen in the latest issue of The New Yorker.

In case you missed it

  • Was it right for the government to pass Aadhaar Bill as a money bill (to bypass Rajya Sabha, where it doesn’t have a majority)? Jairam Ramesh says no. The Supreme Court will hear his case in November.
  • The government said it’s extending the deadline to link Aadhaar number to PAN till December 31, 2017 from August 31. The finance minister had earlier said the government did not have any timeframe (pdf) to complete linking of Aadhaar with PAN (but, maybe, there is a subtle difference there).
  • The Karnataka government gives a travel subsidy of Rs 20,000 to some Char Dham pilgrims. (It picks up 1000 people by a lottery). There is a risk of fraud here, which the states hopes to solve by making Aadhaar mandatory to claim the subsidy.
  • Aadhaar is not mandatory for insurance policies, according to the insurance regulator. And it’s mandatory for taking board exams in Bihar. This follows a case in which the topper had fudged his age to take the exam the second time. It’s not clear why that should be a mistake. Meanwhile, in Tamil Nadu, it’s mandatory to carry your original driver license, despite the earlier announcement by the central government that digital version (through DigiLocker) is also a legal document.
  • Has Aadhaar become a proprietary eponym, like Xerox and Walkman? Even though they don’t have some of the essential features of the biometric identity, electronic identity tags for cows and cars seem to be referred to as Aadhaar. 54 lakh cows in Madhya Pradesh  have these, and cars might get one too, newspapers report.


Founding Fuel’s Slack team had a thoughtful and thought provoking session on law and privacy with Rahul Matthan, partner at Trilegal and author of the discussion paper Beyond Consent. You can check out the discussion by joining the team, and also get instant access to discussions we will have in the coming days. Here’s the link: https://bit.ly/joinprivacy

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