India: The Orbiting Big Brother: Air And Space Surveillance And Privacy Rights

Introduction:

In the world of real estate, it is ubiquitous to find real estate agents skilled at assessing the price of a real estate asset in a locality, by combining data from past transactions of land occurring in that locality with the data about the size of the real estate asset and the nature of the building constructed on it. However, in the exercise of the realtor's formidable professional judgement also lies a threat to the privacy of the real estate asset's owner, who stands to have a very sensitive piece of information about him, viz., his financial worth compromised unwittingly by a real estate agent he doesn't even know, let alone trust. In the 21^st century, by replacing the realtor with a drone operator or a satellite image processor combining remote sensing data with data analytics, artificial intelligence and machine learning techniques, privacy concerns have multiplied manifold due to the resulting computing power. As an unprecedented privacy problem statement, there is some ambiguity on how remote sensing data can be regulated. By stitching together international and domestic legal concepts, this article argues that raw remote sensing data (hereinafter referred to as "remote sensing data") of a land asset ought not to be subjected to stringent privacy regulations and must instead be treated as "publicly available data".

Regulating Privacy in Remote Sensing Data: Applying Precedented Concepts to an Unprecedented Question

International Law relevant to this privacy problem statement, can be broadly understood by referring to international human rights law and international space law. Under international human rights law, personal autonomy and inherent human dignity¹ lies at the heart of both liberty² and privacy³. The right of liberty sanctifies travel and therefore affirms, the right to derive and store the sensory experiences from such travel (although the wanderlust of some European explorers from history, is viewed with a justifiable degree of scepticism by Syphilis patients⁴, descendants of African slaves and many former African and Asian colonies). Conversely, Privacy guards against the integrity of the self against another's misuse of liberty. Thus, over extension of privacy to cloak the information of a land obviously visible, would defeat the freedom of travel inherent to liberty itself. On the other hand, unfettered liberty, renders privacy rights obsolete with a corresponding threat of damage to the integrity of the human mind and body. A balance between the two being inevitable, we must acknowledge that liberty and Privacy are both functions of dignity and autonomy and therefore, are neither mutually exclusive nor absolute or independent.

Specific to the position under international space law, a country is deprived of the right not to be observed, but enjoys the right of access to the data generated from being observed by remote sensing technology and that too, on non discriminatory terms⁵. If sovereign nations stand deprived of the right not to be observed, the subjects of such sovereign nations can expect no immunity from being observed from space⁶.

Under U.S. law, property rights remained the philosophical and intellectual foundation for the framework of privacy⁷. Judgements from the United States Supreme Court conclusively placed the right of privacy within the realm of the right to feel secure in a property against unreasonable intrusion of the state⁸. Though there is little or no precedent involving adjudication of privacy rights against space based remote sensing observation, arrest of accused in criminal cases on the basis of warrantless areal observation of activities on their land by the naked eye were upheld⁹, negating the defence of privacy rights under the 4^th Amendment to the Constitution. Any expectation that one's address should remain private were also adjudicated to be unreasonable¹⁰. The U.S. economy though firmly in favour of liberal private ownership of land remains conservative while adjudicating claims asserting absolute spatial privacy, being mindful of its risks to state interests.

Contrary to the liberal approach to land ownership in the United States of America, The right of property under Indian law only enjoys the status of a constitutional right¹¹ but not a fundamental human right. The massive exercise of consolidation of land by the states and its subsequent redistribution on the consideration of grounds of social equity¹², operated on the legal principle of eminent domain¹³. Therefore, transactions involving land are compulsorily registered under the provisions of Section 17 of the Indian Registration Act, 1908 and remain matters of public record. Efforts to bypass the mandatory registration requirement and consequential transparency under Indian laws through innovative land transaction structures, were struck down by the Indian Supreme Court citing fiscal interests, prevention of title fraud and other public policy considerations¹⁴. In fact, Agricultural lands are subjected to greater informational transparency by several states in India¹⁵. These legal trends and patterns estimate (notwithstanding India's inclination towards a privacy law that reflects the more stringent General Data Protection Regulation of the European Union), that privacy regulations (a right restricted to balance state and individual interests on similar lines¹⁶) are logically likely to continue treating land data and therefore remote sensing data as publicly available resources.

Privacy Implications from treating remote sensing data as publicly available resources

Even if classified as publicly available resources, remote sensing data continues to attract privacy concerns and regulations. Firstly under the common law of torts, common to India and U.S.A., among other nations, painting someone in false light is actionable as a violation of civil right of privacy. Downstream remote sensing applications leverage such data to improve supply chain logistics¹⁷, aid disaster management¹⁸ and enable more meaningful assessment of credit worthiness of agricultural land by financial institutions¹⁹. Thus, remote sensing data can be used to assess financial worth of land parcels, influence key business decisions and therefore influence costs and profits. However, there are legal and business risks inherent to any statistical exercise and this is true for even remote sensing data analytics. As a crude example, if an application developer wrongly associates the satellite image of a flood affected land with the latitude and longitude co-ordinate of a land parcel that has enjoyed a bumper rice crop, the owner of the land having bumper rice crop could be wrongly classified as ineligible for a loan citing flood related losses he did not sustain. Addressing such concerns and risks requires a standard of care designed to ensure accuracy of data, optimum data security and best practices in data management and use²⁰.

Publicly available data raises requirements of compliance, albeit less stringent under existing European Privacy Regulations²¹ as well as under the proposed Indian Privacy Regulations. Requirement of consent is explicitly waived under European regulations, for data manifestly made public by the data subject²² while proposed Indian regulations provide discretion to the Data Protection Authority to stipulate such waivers depending upon the nature of the publicly available data and the context of processing. Land information obviously visible coupled with the transparency of land data in public records could be construed as remote sensing data being manifestly made public. But even such information comes with encumbrances for purposes of processing and must remain sensitive to the individual's privacy expectations²³. Consequently, even the publicly available data, inter alia, must be inevitable (without alternatives) to the intended processing activity and must be stored or used subject to legally defined limitations of time, context and purpose. However by resorting to data sufficiently anonymised and de-identified and by aligning data processing objectives with select purposes that regulations recognise as justifying restrictions of privacy (such as state interests), further waivers and exemptions from privacy compliances can be potentially availed²⁴. Technology businesses ought to consider privacy encumbrances as incentives instead of a burden, to innovate by a) focusing on smarter algorithms that are less data dependent²⁵, b) fostering trust with data subjects through privacy sensitive culture and c) develop smarter security systems for data privacy.

Conclusion

Remote Sensing data is thus most appropriate regulated as "publicly available data" as it avoids the perils of over-regulation, without forsaking vigilance or the duty to protect individual privacy rights. Optimum remote sensing privacy regulations serve dual goals- creating an economy from remote sensing technology and then leveraging it for welfare objectives without possibility of harm or abuse to individual privacy.

Footnotes