With the Niira Radia tapes controversy in India, Ratan Tata and other leading personalities have asked people to respect their “right to privacy.” The situation is peculiar since the government is the sole-owner of the tapes, and it is not clear who in the government was responsible for leaking them. Many argue that the information released has no relevance to the purpose of gathering such information — an income tax-related investigation on Radia. Hence, leaking the tapes was wrong, and the media was also wrong to publish the transcripts. Others argue that it is all in the public interest. While the ethics of the journalists recorded in the tapes have been debated publicly, we will focus on the ethics of government.

The heart of the matter here is that the cost to the government of violating individual privacy is zero. All it has to do is demand compliance from the carrier under a pretext of public good (in this case, tax evasion). Whenever the true value or disvalue of something has been hidden from those transacting, the resource in question has been abused and has led to unfortunate consequences. For instance, when Soviet Russia decided to subsidise bread out of compassion for the poor, farmers started feeding bread to their pigs because it was cheaper than fodder. When N T Rama Rao announced the rice subsidy in Andhra Pradesh, the state almost overnight converted to a rice-eating state, creating major water shortages since rice requires a large amount of water. In the phone tapping problem, since the “service” provided here by the carrier companies of allowing the government to violate individual privacy has no price-tag attached, people in the government can use it at will.

How might we go about attaching a cost to the government’s actions? From a legal perspective, the Indian Constitution lays down the right to freedom as a fundamental right of every individual in India. That involves the freedom to be left alone on one’s property as long as one is not threatening the freedom of others. It also involves the freedom to not be coerced into breaking one’s promises against one’s will. One’s phone conversation happens on property that is owned partly by the individual (as far the cell phone device is concerned) and partly by another group of individuals (who work for a carrier company, providing the service infrastructure for the call), through a mutual agreement between the two parties. When the government hijacks the call for tapping, it is causing the service provider to violate its agreement with the subscriber, where the subscriber did not explicitly or implicitly grant any permission to the carrier to allow their calls to be tapped. To compensate for such coercion, we would have to design a system in which, if the government finds nothing after a minimum period of tapping that is deemed reasonable in advance by the government and the carrier in question, then, it must be obliged to compensate the individual through the carrier company a predetermined sum of money as restitution for causing contract violation.

This immediately creates a market for intelligent detective services, as opposed to the present system where the dunk-head and the smart are treated as having the same value. If this idea is extended to policing in general, it will have large benefits for civil society. First, the police will be far more careful when dealing with civil society, if every act of search and investigation has a restitution attached to it if proved unfruitful. Second, the police will see the need to reduce costs by investing in better education to make better decisions, involving both heart and head, as opposed to relying on brute force. Third, if we look at many of the anti-government movements we’d notice that many of them were sparked when police injustice was done to the innocent. By instituting these systemic changes, we are sowing seeds of justice that are bound to lead to a society that will have lower resentment and violence and greater harmony

This idea is not as radical as it sounds, and in fact, the government’s authority has already been questioned in courts. In People’s Union for Civil Liberties versus Union of India, a case that challenged the British-era interception law that allows tapping of messages in the case of a “public emergency” or “in the interest of public safety,” the Supreme Court emphasised (in 1997) that the arbitrariness of this law had to be curtailed. It laid down guidelines that involved scrutinising a tapping order by a review committee, which would have the power to scrap the tapping order. If the tapping is carried out, then records of the intercepted communications are required, along with the extent to which material is disclosed, the people who know about this material and the copies in existence. Moreover, every two months, the permission to tap has to be renewed, implying a re-evaluation. A simple glance at the stringent guidelines imposed by the Supreme Court will reveal that there is a good chance that the government may have gone against this judgment with their actions.

First published in the Business Standard, Jan 29, 2011

What Price Privacy?