Privacy, considered by many as a basic right, has always been evolving and changing in the digital world and will keep changing at an even faster pace. Over the years the concept of the right to privacy has been tested, stretched and reimagined in the context of technology changes in America's case law. This paper examines the right to privacy in four general periods: common law era, constitutional era, first digital disruption era, and the era of ubiquitous surveillance, algorithmic profiling and artificial intelligence. The paper discusses critically some of the important cases of the United States Supreme Court, the European Court of Human Rights and the Supreme Court of India that have affected the privacy jurisprudence in the respective jurisdictions. It examines data protection laws in the EU (e.g., the General Data Protection Regulation (GDPR)), India (e.g., the Digital Personal Data Protection Act, 2023) and some of the major challenges and issues for privacy in the platform economy, biometric surveillance and AI, and assesses their relevance and effectiveness. The paper highlights three tensions that are present in modern privacy law, namely privacy vs security in a mass surveillance world, privacy vs innovation in a data economy and privacy vs enforcing privacy rights in a broader power dynamic, such as a technology platform. It adopts comparative constitutional law to craft a reconceptualised notion of privacy in the current digital world as shaped by the principle of dignitary autonomy, a risk-based notion of the proportionality of data-processing, and structural duties of non-state and state actors.
Ankush Singla (Tue,) studied this question.