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Revisiting Aarogya Setu: A Counter-Argument

Written by Soham Bhalerao [i] and Shreyas Shetty [ii]

[i][ii] Fourth Year, BA. LLB. ILS Law College, Pune


Source: The Hindu


Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.


Introduction

COVID 19 is an infectious virus spread via human contact, coughing or sneezing. Such is its severity that the World Health Organisation has even gone ahead and declared the same as a global pandemic. India, under the BJP government led by Prime Minister Narendra Modi, was quick to enforce a nationwide lockdown when the virus was still in its very nascent stage in India[1]. On 2nd April 2020, the Indian Government launched a digital mobile app namely Aarogya Setu to combat the problem at hand[2]. The name is made up of two Sanskrit words, meaning ‘Health Bridge’ or ‘bridge to being healthy’. The application became the highest downloaded app in the world shortly after launch. 50 million users downloaded the app within 13 days of its launch[3]. The app uses location as well as Bluetooth data primarily to create a trail of the user’s movements. It collects certain data from its users to build a community database of sorts and alerts a user when he is in danger of being affected with the virus or is in close proximity to an infected person. This article seeks to counter the arguments against the Aarogya Setu app and highlights the importance of the app in combating the spread of the Coronavirus.


Contact Tracing Applications Worldwide

Contact tracing apps are of two forms, namely centralised and decentralised. A centralised approach is one wherein the data collected from apps is forwarded to be analysed and stored, usually a Government body. When the mobile phones of any two individuals come into certain proximity, the authority is informed and according to the information action is taken. This method is preferred by most nations having contact tracing apps such as Israel, India, UK, Singapore and many more.

A decentralised approach is one in which the information is stored in the individual’s device itself and when they come in proximity of one another, the application, on the basis of information received, acts accordingly.

Most nations prefer the centralised approach as the data assimilated can be used to draw up any change in the method to tackle the growing changes in the number of infected individuals.

Arguments raised against Aarogya Setu

1) Violation of Privacy:

The Supreme Court in the Puttaswamy judgement[4] recognised privacy as a Fundamental Right and ever since the Aarogya Setu app came into public working, there has been a steady stream of detractors who have held that the data collected by the app is violative of the same. They claim that the method of storing this information is unclear and leaves a possibility of the Government using it for mala-fide purposes.

2) Hyper-Surveillance:

Cyber-security experts and privacy activists have raised concerns relating to the information collected by the app, its storage, use and handling by the Indian Government. In light of making the usage of the app mandatory, the Government was blamed for forcefully imposing this app on the citizens sans any legal backing whatsoever. The concerns of India becoming a surveillance state were raised with aplomb.

3) No regulatory law:

Another strong point raised was the non-existence of any specific law in relation to regulation of data and its privacy. It was argued that the collection of sensitive information needed to have a clear legislative backing like in the case of Aadhar, which had the backing of the AADHAR Act, 2016.

4) Social Challenges:

It was argued that considering the social demographic of India where a considerable number of people do not have access to smartphones, the app’s effectiveness to curtail the virus is questionable.

Necessity

1) Legal Regulation of Aarogya Setu:

The Indian Government, vide the powers given to it under the provisions of the Disaster Management Act, 2005 formulated Empowered groups to tackle issues pertaining to containment and control of the COVID-19 disease, given the fact that the present pandemic does come within the definition of a “Disaster” as under the Act. The Empowered Group in charge of the app, as per the order dated 11th May 2020, laid down strict regulation to alleviate any concerns citizens might have in relation to their privacy[5]. In relation to concerns about third parties, the Information Technology Rules, 2011, which limit the movement and sharing of Sensitive Personal Information within whose definition the data collected by the App does come, will apply. Ergo, from both sides there is regulation and control of the App.

Moreover, the Epidemic Act, 1897 gives wide ranging powers to the Central Government to formulate policies it deems fit in order to abate and control any spread of an epidemic.

Therefore, it can be seen that via the powers granted from two Acts, the Indian Government has sufficient legal backing to continue the usage of the Aarogya Setu App.

2) Transparency and Usage of Data:

The Order mentioned earlier clearly lays down the purpose of collection of data and the nature of data collected. Some of the stand-out regulations in this Order were the limitation in inter-departmental usage of data, with the Order strictly specifying that the purpose of any and all data collected was in relation to the present COVID 19 pandemic. The individuals who use the app are given the option to clear out their data or stop the app from being given access. The government went a step further and stated that the data would be removed within 180 days from when such data was stored. The Order also specified that the identity of the individuals sharing their data would be protected in the best manner possible via anonymisation and that any data, if given to universities or research institutions, would be scrubbed clean of any traces which may cause an invasion of privacy[6]. Any violation of the above would result in penalties as under Disaster Management Act, 2005 and any other provisions deemed necessary. Moreover, many arguments have been raised with respect to the Act’s status vis-à-vis the Personal Data Protection Bill, 2019 which is yet to be passed by the Parliament. For the same reason, Ajay Prakash Sawhney, Secretary, Ministry of Electronics and Information Technology said, “Even though that bill (The Personal Data Protection Bill, 2019) is still in Parliament, we have actually implemented the principles of personal data privacy in designing this app.[7]”

In addition to this, the Government also proceeded to make the source code of the app open to the public, which essentially allows public experts and researchers to analyse and report the shortcomings of the app. The reasoning behind it is that the more it is thrown open to the public the easier it is to fix vital bugs and resolve other ancillary issues with the app.

It also announced cash prizes for the developers to spot the vulnerabilities associated with the app.

3) Proportionality:

The argument often raised to counter the usage of the app is that the alleged invasive nature of the app i.e. the details that the app collects does not fulfill the aim that it seeks to achieve which is of controlling the transmission of the virus. Having looked upon the privacy specifications, it is imperative to gauge the actual modus operandi of the app to analyse its usefulness. The data that the app asks, i.e. Name, Age, Phone no., Sex, Profession, Countries visited in the last 30 days, is used to notify the users if they are in danger of being contracted with the virus. It is important to note that all the mentioned factors are necessary to have an accurate picture of the health of a particular person. The virus is especially deadly to people below 10 and above 65. It has been shown to affect men more than women. The virus is known to be widespread in certain countries like the USA and Italy more than the others. Contact information of an affected person is extremely important for a quick recovery and diagnosis. Certain professions where physical contact is involved are inadvertently at a greater risk than a desk job. Hence, the data collected is proportionate to the aim that the app seeks to achieve.

4) Social Demographic:


According to Niti Aayog’s CEO, Amitabh Kant, Aarogya Setu has helped the authorities identify the presence of more than 650 hotspots in the country, and another 300 emerging hotspots which could have otherwise been missed[8]. A virulent disease like CoVID-19 takes just one uncontrolled hotspot to spread in an unprecedented manner, infecting possibly a whole city, as seen in the Tablighi Jamat outbreak[9]. Hence, the argument doubting the effectiveness of the app considering that a large number of people do not have smartphones does not hold water. Non- availability of smartphones to some people definitely does not stop the government from identifying hotspots using contact tracing mechanisms of the app from the ones who do. For this same mechanism will prevent an outbreak in a densely populated area consisting of under-privileged people who may not have a smartphone.

Moreover for the people who do not have a smartphone, the Government has launched the The ‘Aarogy Setu Interactive Voice Response System’[10]. This essentially is a toll free number available across the country which seeks to substitute the utility of the Aarogya Setu app via text messages and telephonic conversations.

The information given by the caller is entered into the Aarogya Setu database and the caller is notified regarding his risk level accordingly.

5) Forceful imposition:

Necessitas Non Habet Legem” is an old maxim which means that necessity knows no law. As has been argued above, the Government via the National Disaster Management Act as well as the Epidemic Diseases Act has the power to issue necessary directions to control the problem at hand. The proportionality test paves a way for the Government to collect the above-mentioned data for the purpose of COVID-19. This, read with the above maxim, empowers the government to compulsorily impose every person with smartphones in the country to have this app until we get over this pandemic.

Conclusion

The Aarogya Setu app plays a vital role in helping the Indian Citizens from COVID-19 and hence must be embraced with all gusto. The decision of the government to use technology to combat the virus is no different from other countries who are using the same to good effect. If welcomed wholeheartedly by the people of India, this shall go a long way in the control and the subsequent eradication of the virus.


[1] The Economic Times, India will be under complete lockdown for 21 days: Narendra Modi, https://economictimes.indiatimes.com/news/politics-and-nation/india-will-be-under-complete-lockdown-starting-midnight-narendra-modi/articleshow/74796908.cms [2] Ministry of Electronics & IT, Aarogya Setu is now open source, https://pib.gov.in/PressReleasePage.aspx?PRID=1626979 [3] Hindustan Times, Aarogya Setu becomes world’s 7th most downloaded app in April, beats Netflix and others, https://tech.hindustantimes.com/tech/news/aarogya-setu-becomes-world-s-7th-most-downloaded-app-in-april-beats-netflix-and-others-story-W3w6DvtWXwVH54X1KpZZXO.html [4] Justice KS Puttaswamy V/s Union of India (WP {Civil} Case No 494/2012) [5]https://www.meity.gov.in/writereaddata/files/Aarogya_Setu_data_access_knowledge_Protocol.pdf [6] Ibid [7] The Hindu, Aarogya Setu is now open source what does it mean, https://www.thehindu.com/sci-tech/technology/aarogya-setu-app-is-now-open-source-what-does-it-mean/article31689459.ece [8] Business Standard, Would've missed 300 Covid-19 hotspots if not for Aarogya Setu app: NITI CEO, https://www.business-standard.com/article/current-affairs/aarogya-setu-alerted-govt-300-emerging-covid-19-hotspots-niti-aayog-ceo-120051000085_1.html [9] The Hindu, Nearly 4,300 cases were linked to Tablighi Jamaat event, says Health Ministry, https://www.thehindu.com/news/national/coronavirus-nearly-4300-cases-were-linked-to-tablighi-jamaat-event-says-health-ministry/article31376202.ece [10] The Hindu, Health Ministry launches Aarogya Setu IVRS facility for those without smartphones, https://www.thehindu.com/news/national/coronavirus-health-ministry-launches-aarogya-setu-ivrs-facility-for-those-without-smartphones/article31518746.ece Bibliography

Cases :

1) Justice KS Puttaswamy V/s Union of India (WP {Civil} Case No 494/2012)

News articles :

1) https://economictimes.indiatimes.com/news/politics-and-nation/india-will-be-under-complete-lockdown-starting-midnight-narendra-modi/articleshow/74796908.cms

2) https://tech.hindustantimes.com/tech/news/aarogya-setu-becomes-world-s-7th-most-downloaded-app-in-april-beats-netflix-and-others-story-W3w6DvtWXwVH54X1KpZZXO.html

3) https://www.thehindu.com/sci-tech/technology/aarogya-setu-app-is-now-open-source-what-does-it-mean/article31689459.ece

4) https://www.business-standard.com/article/current-affairs/aarogya-setu-alerted-govt-300-emerging-covid-19-hotspots-niti-aayog-ceo-120051000085_1.html

5) https://www.thehindu.com/news/national/coronavirus-nearly-4300-cases-were-linked-to-tablighi-jamaat-event-says-health-ministry/article31376202.ece

6) https://www.thehindu.com/news/national/coronavirus-health-ministry-launches-aarogya-setu-ivrs-facility-for-those-without-smartphones/article31518746.ece Government press releases/notifications:

1) https://pib.gov.in/PressReleasePage.aspx?PRID=1626979

2)https://www.meity.gov.in/writereaddata/files/Aarogya_Setu_data_access_knowledge_Protocol.pdf

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