How much of digital inclusion is beneficial? When does such inclusion cross the boundary into intrusion? Some may say that it is already too late to raise these red flags. Nonetheless there is increasing questioning of what exactly is being achieved by the State’s digitization drives. Perhaps India’s queer communities should be at the forefront of asking such questions. Not doing so may well undermine their efforts to move on from decriminalization to take on gender and sexuality-based discrimination.

Last week, on November 16, 2021, the Parliamentary Standing Committee on Information Technology demanded answers from Saurabh Garg, the CEO of the Unique Identification Authority of India (UIDAI), and IT Secretary Ajay Sawhney regarding the UIDAI’s data protection measures. It also asked how the UIDAI addresses the concerns of 360-degree surveillance with the interlinking of the Aadhaar database with multiple identities. This questioning was in the context of the Personal Data Protection Bill, 2019. In a new development though on November 22, the Standing Committee finalized its report on the Bill giving unbridled rights to the State to override an individual’s right to privacy in the name of public interest.

The Opposition parties have voiced their dissent and a legal challenge on the constitutionality of the Bill may well be mounted if it is passed in the Parliament. But this state of affairs has been some time in the making.

Quote: Increasingly, an individual’s ability to realize their rights is being tied to their ability to turn themselves into data using Aadhaar to access both public and private sector services. Privacy experts have repeatedly flagged the problems with a 360-degree surveillance machinery created by linking identities, including linking the voter identity to Aadhaar. Understanding the impact of these developments for the historically marginalized queer communities has become crucial to understand the extent of human right violations.Despite the Supreme Court’s 2018 Aadhaar verdict that approved the use of the Aadhaar card only for accessing social welfare programmes and filing income tax returns (Aadhaar-PAN linkage), there has been a significant increase in the linkage of Aadhaar to different services and identities much beyond the scope of what the court had said. This seems to be leading to the development of 360-degree profiling of individuals.

The Ministry of Health & Family Welfare, Government of India is issuing a digital health identity number using Aadhaar authentication, once again under the guise of it being voluntary. Even state governments have begun issuing state-level digital identities based on an individual’s Aadhaar number. While Haryana began issuing an Aadhaar linked family identity to permanently residing families in 2019, Tamil Nadu began allotting an Aadhaar-linked Makkal number in the same year.

Increasingly, an individual’s ability to realize their rights is being tied to their ability to turn themselves into data using Aadhaar to access both public and private sector services. Privacy experts have repeatedly flagged the problems with a 360-degree surveillance machinery created by linking identities, including linking the voter identity to Aadhaar. Understanding the impact of these developments for the historically marginalized queer communities has become crucial to understand the extent of human right violations, and re-imagine the human rights framework and an individual’s access to their rights.

Digitization: Voice for a price?

In the 1990s and early 2000s, when being non-heteronormative was mostly mentioned in secret, many queer people considered the Internet a relatively safer (anonymous) space and way to connect with fellow community members. At the same time, the government introduced digitization of State data systems as a means to build more people-centric systems and provide better rights access to those who were marginalized. The intent was not bad. Living up to the expectation, the digital world came readily to the rescue of so many during the COVID-19 pandemic. From crowdfunding campaigns to peer support for queer people, the digital world provided support and solutions when nothing else could during the global lockdowns.

Access to digital spaces, including online ones, has increasingly provided queer individuals in India with avenues to express themselves and connect with likeminded people, often acting as a balm to their loneliness in the real world. That said, a closer look at the transition to the digital may reveal a lack of choice or an alternative.

This transition for the people began with the issuing of Aadhaar and mandating it for access to constitutionally sanctioned rights like healthcare and even life-affirming treatment like antiretroviral therapy in 2015 for persons living with HIV. With this began the redefinition of rights access, which has steadily come to mean being present in data systems. This was followed by the demonetization in 2016 that forced so many to adopt digital platforms for financial transactions. This had a serious impact and continues to affect transgender persons and others from the queer communities who are dependent on the cash economy for their livelihood.

Digital transition increased several folds during the pandemic. The pressure to use digital media has increased, but the level of education of many queer individuals and their understanding of the safe use of the Internet continues to remain the same – limited, rather negligible. Like other marginalized communities in India, access to information is a matter of privilege for many transgender and other queer individuals. This access is further limited by multiple forms of marginalization around caste, religion and disability among others.

What is the impact of 360-degree profiling for queer people? What does it mean for sex workers, who have now been forced to move their work online because of the pandemic and with insufficient information and ways to protect themselves? Given a choice, will a sex worker feel safe to practice their profession online? What about individuals who have not told their family or community about their gender identity or sexual orientation? What is the protection that is available to these individuals? How can they truly protect their privacy?

What will be the price for individuals with identities that are constantly ostracized and often responded to with violence and assault? Can data leaks cost them their life? With increased and forced digitization, how will the State and the legal systems respond to crimes against queer people that may be an outcome of data leaks and confidentiality of their digital lives being compromised?

Remedy: Does data protection cover the entire ambit of right to privacy?

While the 2017 verdict in Justice K. S. Puttaswamy & Another Vs. Union of India & Others recognized the right to privacy as a Fundamental Right enshrined in the Indian Constitution, the Personal Data Protection Bill, 2019 is a draft law that is focused on data protection but does not address all aspects of an individual’s privacy. This is a serious gap in addressing the needs of queer people, who do not exist merely in the digital world and data systems.

Quote: How will this history influence the 360-degree profiling of queer individuals? How will it further trample on the rights of queer individuals, especially those dependent on the State for their basic needs? Increasingly, policy decisions by our governments on digitizing public services seem to have lesser and lesser room to accommodate individuals with gaps in information or Internet access. Invariably, these are individuals from historically marginalized population groups.For transgender persons, entering these data systems often involves going through several layers of discrimination in government offices to procure valid identity documents that reflect their desired gender identity. Besides, many queer people are often subject to harassment and violence based on their gender identity or sexual orientation in their homes, workplace, educational institutions, and in public spaces at large. Queer people are constantly pushed to hide their identities.

In this context, it is appreciable that the Personal Data Protection Bill, 2019 defines sensitive personal data as “financial data, health data, official identifier, sex life, sexual orientation, biometric data, generic data, transgender status, intersex status, caste or tribe, religious or political belief or affiliation or any other data categorized as sensitive data under Section 15”. But it is pertinent to also question the implication of such a law for queer people. We already have the contentious precedent set by the Transgender Persons (Protection of Rights) Act, 2019 and the continued struggles of transgender persons even after the Act came into being. So, the mere mention of these terms without specific provisions to address the realities around them can make this Bill meaningless for minorities that have a long history of stigmatization and criminalization because of non-normative bodies, genders and sexualities.

How will this history influence the 360-degree profiling of queer individuals? How will it further trample on the rights of queer individuals, especially those dependent on the State for their basic needs? Increasingly, policy decisions by our governments on digitizing public services seem to have lesser and lesser room to accommodate individuals with gaps in information or Internet access. Invariably, these are individuals from historically marginalized population groups.

It is important to understand the real impact of such privacy laws and frameworks. Is it proportional to create a 360-degree profile for individuals from historically marginalized communities for the sake of State sanctioned welfare? If a data breach happens, what choice will they have in protecting their right to privacy? Or is the right to privacy only a right of the rich and the privileged?

Main graphic credit: Pawan Dhall