Karnataka High Court Seeks Details About Functioning Of Aargoya Setu App

A division bench of Chief Justice Abhay Oka and Justice S Vishwajith Shetty directed the Centre to provide the following details :

1. What kind of data is made available to the government by way of an individual downloading the app?

2. If a person who has downloaded the application and conducts a self-assessment test, whether the data entered while conducting self assessment test becomes available to the government and other agencies.

3: If an individual on downloading an App puts on Bluetooth, what kind of personal data becomes available to the government and other agencies?.

4: Whether it is mandatory for a person who downloads the app to subject himself to a self-assessment test.

5: Whether on downloading the app, Bluetooth is automatically activated.

6: What is the concept of response data referred to in Government order, dated 11 May 2020?.

7: In which contingencies status of a person on Aarogya setu app is shown as either red or orange?. In which cases it continues to be yellow or green?.

The bench during the hearing noted that "Privacy is disclosing data without consent. The other aspect of privacy is those who may not get infected with COVID-19 the app may reflect they are infected this is also some kind of breach of privacy."

It added that "The issue of privacy is that because of Covid-19, I will download the Aarogya Setu app and make a self assessment, the question is if I say I am suffering from hypertension or diabetes why anybody else should get that information."

Additional Solicitor General, M B Nargund submitted that it is online medical information which is submitted to the system the information is shared with the government only when the person is suffering or suspected to be contacted with covid-19. He stated that it was like a person visiting a doctor and sharing his medical history with the doctor.

The bench in a lighter vein said "We are the last person to suggest that we want to encroach upon privacy. But suppose a lawyer has downloaded the Aaroagya Setu app and he seeks adjournment on the ground of ABC reasons, so data can be made available to check the genuineness of that ground."

The court will continue hearing the matter on November 26.

App does not violate privacy, says Centre

The Central government has stated that the implementation of Aarogya Setu application is supported by law and it is one of the measures adopted for containing Covid-19 in the country, which does not violate the privacy of any individuals.

In its statement of objections submitted before the Karnataka High Court, the government has said that Aarogya Setu application, launched on April 2, is in exercise of powers conferred under the Disaster Management Act, 2005, Epidemic Diseases Act 1897, National Disaster Management Plan and Executive powers.

It added that "The app doesn't violate the privacy of any individual. The right to privacy has not been compromised as adequate privacy protections have been built in the app. The app has built in privacy principles of right to access and correct personally identifiable information for registered users, use limitation, purpose limitation, data minimization data retention and data security."

It has also contended that "The Aarogya Setu project is an outcome of joint efforts from various volunteers from industry, academia and government. The external volunteers participated in the Aarogya Setu project in their individual capacity on a pro-bono basis. The data collected by the Aarogya Setu application is governed by the Aarogya Setu Data Access and Knowledge sharing protocol which clearly defines what data can be shared with whom and for what purpose."

In regards to the contention raised by the petitioner that the application has been collecting excessive data and this goes against the principle of the data minimization and purpose limitation as enshrined in Puttaswamy Judgement.

The reply states that "Aarogya setu application is for the benefit of larger public interest. Violation of privacy should not be imaginary, it should be real and it should have reasonable expectations. The app is in the interest of the public at large. There is a rational nexus between objectives sought to be achieved with less impair, maximum benefits are yielded. Even on applying 'necessity test' also the Aarogya Setu application is a valid one."

It is claimed that "The application is one of the useful tool for the health and other administrative authorities to adopt mitigating measures by identifying the persons tested positive in a given locality as well a s their contacts with non-covid 19 affected persons and also pre-notice to non-covid 19 affected person of their contacts with covid-19 affected persons which helps non-covid 19 affected person for taking preventive measures including medications."

The Government of India has clarified that it has not passed any orders mandating use of Aarogya Setu application for accessing any government service or facility. The claim was disputed by Senior Advocate Colin Gonsalves appearing for the petitioner. He submitted that presently there are instances of 135 government departments and entities, which make the use of the application mandatory.

As regards to the objection of the petitioner that the application is using GPS technology and getting location information of individuals who have downloaded the application every 15 minutes, while applications for contact tracing of persons who test positive for Covid-19, launched across all democratic countries across the world are voluntary.

The government has said "Most of these applications use only Bluetooth and do not access the location of the users, these apps work by signaling the other person that also have the app installed using wireless technology like Bluetooth are all; based on requirements of each and every countries in the world which has no bearing/application on the requirement of India."