This research was undertaken as part of the 'SAFEGUARDS' project that CIS is undertaking with Privacy International and IDRC.

In furtherance of Internet Governance multi-stakeholder Initiatives and Dialogue in 2013, the Centre for Internet and Society (CIS) in collaboration with the Federation of Indian Chambers of Commerce and Industry (FICCI), and the Data Security Council of India (DSCI), is holding a series of six multi-stakeholder round table meetings on “privacy” from April 2013 to August 2013. The CIS is undertaking this initiative as part of their work with Privacy International UK on the SAFEGUARD project.

In 2012, the CIS and DSCI were members of the Justice AP Shah Committee which created the “Report of Groups of Experts on Privacy”. The CIS has recently drafted a Privacy (Protection) Bill 2013, with the objective of contributing to privacy legislation in India. The CIS has also volunteered to champion the session/workshops on “privacy” in the meeting on Internet Governance proposed for October 2013.

At the roundtables the Report of the Group of Experts on Privacy, DSCI´s paper on “Strengthening Privacy Protection through Co-regulation” and the text of the Privacy (Protection) Bill 2013 will be discussed. The discussions and recommendations from the six round table meetings will be presented at the Internet Governance meeting in October 2013.

The dates of the six Privacy Round Table meetings are enlisted below:

1. New Delhi Roundtable: 13 April 2013
2. Bangalore Roundtable: 20 April 2013
3. Chennai Roundtable: 18 May 2013
4. Mumbai Roundtable: 15 June 2013
5. Kolkata Roundtable: 13 July 2013
6. New Delhi Final Roundtable and National Meeting: 17 August 2013

Following the first two Privacy Round Tables in Delhi and Bangalore, this report entails an overview of the discussions and recommendations of the third Privacy Round Table meeting in Chennai, on 18^th May 2013.

Overview of DSCI´s paper on ´Strengthening Privacy Protection through Co-Regulation´

The third Privacy Round Table meeting began with an overview of the paper on “Strengthening Privacy Protection through Co-Regulation” by the Data Security Council of India (DSCI). In particular, the DSCI pointed out that although the IT (Amendment) Act 2008 lays down the data protection provisions in the country, it has its limitations in terms of applicability, which is why a comprehensive privacy law is required in India. The DSCI provided a brief overview of the Report of the Group of Experts on Privacy (drafted in the Justice AP Shah Committee) and argued that in light of the UID scheme, NATRGID, DNA profiling and the Central Monitoring System (CMS), privacy concerns have arisen and legislation which would provide safeguards in India is necessary. However, the DSCI emphasized that although they support the enactment of privacy legislation which would safeguard Indians from potential abuse, the economic value of data needs to be taken into account and bureaucratic structures which would hinder the work of businesses should be avoided.

The DSCI supported the enactment of privacy legislation and highlighted its significance, but also emphasized that such a legal framework should support the economic value of data. The DSCI appeared to favour the enactment of privacy legislation as it would not only oblige the Indian government to protect individuals´ sensitive personal data, but it would also attract more international customers to Indian online companies. That being said, the DSCI argued that it is important to secure a context for privacy based on Indian standards, rather than on global privacy standards, since the applicability of global standards in India has proven to be weak. The privacy bill should cover all dimensions (including, but not limited to, interception and surveillance) and the misuse of data should be legally prevented and prohibited. Yet, strict regulations on the use of data could potentially have a negative effect on companies’ competitive advantage in the market, which is why the DSCI proposed a co-regulatory framework – if not self-regulation.

In particular, the DSCI argued that companies should be obliged to provide security assurances to their customers and that regulation should not restrict the way they handle customers´ data, especially since customers choose to use a specific service in every case. This argument was countered by a participant who argued that in many cases, customers may not have alternative choices for services and that the issue of “choice” and consent is complicated. Thus it was argued that companies should comply with regulations which restrict the manner with which they handle customers´ data. Another participant argued that a significant amount of data is collected without users´ consent (such as through cookies) and that in most cases, companies are not accountable in regards to how they use the data, who they share it with or how long they retain it. Another participant who also countered the co-regulatory framework suggested by the DSCI argued that regulations are required for smartphones, especially since there is currently very low accountability as to how SMS data is being used or shared. Other participants also argued that, in every case, individual consent should be acquired prior to the collection, processing, retention, and disclosure of data and that that individual should have the right to access his/her data and make possible corrections.

The DSCI firmly supported its position on co-regulation by arguing that not only would companies provide security assurances to customers, but that they would also be accountable to the Privacy Commissioner through the provision of a detailed report on how they handle their customers´ data. Furthermore, the DSCI pointed out that in the U.S. and in Europe, companies provide privacy policies and security assurances and that this is considered to be adequate. Given the immense economic value of data in the Digital Age and the severe effects regulation would have on the market, the DSCI argued that co-regulation is the best solution to ensure that both individuals´ right to privacy and the market are protected.

The discussion on co-regulation proceeded with a debate on what type of sanctions should be applied to those who do not comply with privacy regulations. However, a participant argued that if a self-regulatory model was enforced and companies did not comply with privacy principles, the question of what would happen to individuals´ data would still remain. It was argued that neither self-regulation nor co-regulation provides any assurances to the individual in regards to how his/her data is protected and that once data is breached, there is very little that can be done to eliminate the damage. In particular, the participant argued that self-regulation and co-regulation provide very few assurances that data will not be illegally disclosed and breached. The DSCI responded to this argument by stating that in the case of a data breach, the both the Privacy Commissioner and the individual in question would have to be informed and that this issue would be further investigated. Other participants agreed that co-regulation should not be an option and argued that the way co-regulation would benefit the public has not been adequately proven.

The DSCI countered the above arguments by stating that the industry is in a better position to understand privacy issues than the government due to the various products that it produces. Industries also have better outreach than the Indian government and could enhance awareness to both other companies and individuals in terms of data protection, which is why the code of practice should be created by the industry and validated by the government. This argument was countered by a participant who stated that if the industry decides to participate in the enforcement process, this would potentially create a situation of conflict of interest and could be challenged by the courts in the future. The participant argued that an industry with a self-regulatory code of practice may be problematic, especially since there would be inadequate checks and balances on how data is being handled.

Another participant argued that the Indian government does not appear to take responsibility for the right to privacy, as it is not considered to be a fundamental human right; this being said, a co-regulatory framework could be more appropriate, especially since the industry has better insights on how data is being protected on an international level. Thus it was argued that the government could create high level principles and that the industry would comply. However, a participant argued that every company is susceptible to some type of violation and that in such a case, both self-regulation and co-regulation would be highly problematic. It was argued that, as any company could probably violate users´ data in some way down the line either way, self-regulation or co-regulation would probably not be the most beneficial option for the industry. This argument was supplemented by another participant who stated that co-regulation would mandate the industry and the Privacy Commissioner as the ultimate authorities to handle users´ data and that this could potentially lead to major violations, especially due to inadequate accountability towards users.

Co-regulation was once again supported by the DSCI through the argument that customers choose to use specific services and that by doing so, they should comply with the security measures and privacy policies provided. However, a participant asked whether other stakeholders should be involved, as well as what type of incentives companies have in order to comply with regulations and to protect users´ data. Another participant argued that the very definition of privacy remains vague and that co-regulation should not be an option, since the industry could be violating individuals´ privacy without even realising it. Another issue which was raised is how data would be protected when many companies have servers based in other countries. The DSCI responded by arguing that checks and balances would be in place to deal with all the above concerns, yet a general consensus on co-regulation did not appear to have been reached.

Discussion on the draft Privacy (Protection) Bill 2013

Discussion of definitions: Chapter II

The sections of the draft Privacy (Protection) Bill 2013 were discussed during the second session of the third Privacy Round Table meeting. In particular, the session started with a discussion on whether the draft Privacy (Protection) Bill 2013 should be split into two separate Bills, where the one would focus on data protection and the other on surveillance and interception. The split of a Bill on data protection to two consecutive Bills was also proposed, where the one would focus on data protection binding the public sector and the other on data protection binding the private sector. As the draft Privacy (Protection) Bill 2013 is in line with global privacy standards, the possibility of splitting the Bill to focus separately on the sections mentioned above was seriously considered.

The discussion on the definitions laid out in Chapter 2 of the draft Privacy (Protection) Bill 2013 started with a debate around the definitions of personal data and sensitive personal data and what exactly they should include. It was pointed out that the Data Protection Act of the UK has a much broader definition for the term ´sensitive personal data´ and it was recommended that the Indian draft Privacy (Protection) Bill complies with it. Other participants argued that a controversy lies in India on whether the government would conduct a caste census and if that were to be the case, such data (also including, but not limited to, religion and ethnic origin) should be included in the legal definition for ´sensitive personal data´ to safeguard individuals from potential abuse. Furthermore, the fact that the term ´sensitive personal data´ does not have a harmonious nature in the U.S. and in Europe was raised, especially since that would make it more difficult for India to comply to global privacy standards.

The broadness of the definition for ´sensitive personal data´ was raised as a potential problematic issue, especially since it may not be realistic to expect companies in the long term to protect everything it may include. The participants debated on whether financial information should be included in the definition of ´sensitive personal data´, but a consensus was not reached. Other participants argued that the terms ´data subject´ and ´data controller´ should be carefully defined, as well as that a generic definition for the term ´genetic data´ should be included in the Bill. Furthermore, it was argued that the word ´monitor´ should be included in the definitions of the Bill and that the universal norms in regards to the definitions should apply to each and every state in India. It was also noted that organizational affiliation, such as a trade union membership, should also be included in the definitions of the Bill, since the lack of legal protection may potentially have social and political implications.

Discussion of “Protection of Personal Data”: Chapter III

The discussion on the data protection chapter of the draft Privacy (Protection) Bill began with the recommendation that data collected by companies should comply with a confidentiality agreement. Another participant argued that the UK looks at every financial mechanism to trace how information flows and that India should do the same to protect individuals´ personal data. It was also argued that when an individual is constantly under surveillance, that individual´s behaviour is more controlled and that extra accountability should be required for the use of CCTV cameras. In particular, it was argued that when entities outside the jurisdiction gain access to CCTV data, they should be accountable as to how they use it. Furthermore, it was argued that the Bill should provide provisions on how data is used abroad, especially when it is stored in foreign servers.

Issue of Consent

The meeting proceeded with a discussion of Section 6 and it was pointed out that consent needs to be a prerequisite to data collection. Furthermore, conditions laid out in section 3 would have to be met, through which the individual would have to be informed prior to any data collection, processing, disclosure and retention of data. Section 11 of the Bill entails an accuracy provision, through which individuals have the right to access the data withheld about them and make any necessary corrections. A participant argued that the transmission of data should also be included in the Bill and that the transmitter would have to be responsible for the accuracy of the data. Another participant argued that transmitters should be responsible for the integrity of the data, but that individuals should be responsible for its accuracy. However, such arguments were countered by a participant who argued that it is not practically possible to inform individuals every time there is a change in their data.

Outsourcing of Data

It was further recommended that outsourcing guidelines should be created and implemented, which would specify the agents responsible for outsourcing data. On this note, the fact that a large volume of Indian data is being outsourced to the U.S. under the Patriot Act was discussed. In particular, it was pointed out that most data retention servers are based in the U.S., which makes it difficult for Indians to be able to be informed about which data is being collected, whether it is being processed, shared, disclosed and/or retained. A participant argued that most companies have special provisions which guarantee that data will not cross borders and that it actually depends on the type of ISP handling the data.

Another issue which was raised was that, although a consumer may have control over his/her data at the first stage, that individual ultimately loses control over his/her data in the next stages when data is being shared and/or disclosed without his/her knowledge or consent. Not only is this problematic because individuals lose control over their data, but also because the issue of accountability arises, as it is hard to determine who is responsible for the data once it has been shared and disclosed. Some participants suggested that such a problem could possibly be solved if the data subject is informed by the data processor that its data is being outsourced, as well as of the specific parties the data is being outsourced to. Another participant argued that it does not matter who the data is being outsourced to, but the manner of its use is what really matters.

Data Retention

Acting on the powers given by POTA, it was argued that 50,000 arrests have been made. Out of these arrests, only seven convictions have been made, yet the data of thousands of individuals can be stored for many years under POTA. Thus, it was pointed out that it is crucial that the individual is informed when his/her data is destroyed and that such data is not retained indefinitely. This was supplemented by a participant who argued that most countries in the West have data retention laws and that India should too. Other participants argued that data retention does not end with data destruction, but with the return of the data to the individual and the assurance that it is not stored elsewhere. However, several participants argued that the return of data is not always possible, especially since parties may lack the infrastructure to take back their data.

It was pointed out that civil society groups have claimed that collected data should be destroyed within a specific time period, but the debate remains polarized. In particular, some participants argued that data should be retained indefinitely, as the purpose of data collection may change within time and that data may be valuable in dealing with crime and terrorism in the future. This was countered by participants who argued that the indefinite retention of data may potentially lead to human rights violations, especially if the government handling the data is non-democratic. Another participant argued that the fact that data may be collected for purpose A, processed for purpose B and retained or disclosed for purpose C can be very problematic in terms of human rights violations in the future. Furthermore, another participant stated that destruction should mean that data is no longer accessible and that is should not only apply to present data, but also to past data, such as archives.

Data Processing

The processing of personal data is regulated in section 8 of the draft Privacy (Protection) Bill 2013. A participant argued that the responsibility should lie with the person doing the outsourcing of the data (the data collector). Another participant raised the issue that although banks acquire consent prior to collection and use of data, they subsequently use that data for any form of data processing and disclosure. Credit information requires specific permission and it was argued that the same should apply to other types of personal data. Consent should be acquired for every new purpose other than the original purpose for data collection. It was strongly argued that general consent should not cover every possible disclosure, sharing and processing of data. Another issue which was raised in terms of data processing is that Indian data could be compromised through global cooperation or pre-existing cooperation with third parties.

Data Disclosure

The disclosure of personal data was highlighted as one of the most important provisions within the draft Privacy (Protection) Bill 2013. In particular, three types of disclosure were pointed out: (1) disclosure with consent, (2) disclosure in outsourcing, (3) disclosure for law enforcement purposes. Within this discussion, principle liability issues were raised, as well as whether the data of a deceased person should be disclosed. Other participants raised the issue of data being disclosed by international third parties, who gain access to it through cooperation with Indian law enforcement agencies and cases of dual criminality in terms of the misuse of data abroad were raised. A participant highlighted three points: (1) the subject who has responsibility for the processing of data, (2) any obligation under law should be made applicable to the party receiving the information, (3) applicable laws for outsourcing Indian data to international third parties. It was emphasized that the failure to address these three points could potentially lead to a conflict of laws.

According to a participant, a non-disclosure agreement should be a prerequisite to outsourcing. This was preceded by a discussion on the conditions for data disclosure under the draft Privacy (Protection) Bill 2013 and it was recommended that if data is disclosed without the consent of the individual, the individual should be informed within one year. It was also pointed out that disclosure of data in furtherance of a court order should not be included in the Bill because courts in India tend to be inconsistent. This was followed by a discussion on whether power should be invested in the High Court in terms of data disclosure.

Discussion of “Interception of Communications”: Chapter IV

The third Privacy Round Table ended with a brief discussion on the fourth chapter of the draft Privacy (Protection) Bill 2013, which regulates the interception of communications. Following an overview of the sections and their content, a participant argued that interception does not necessarily need to be covered in the draft Privacy (Protection) Bill, as it is already covered in the Telegraph Act. This was countered by participants who argued that the interception of communications can potentially lead to a major violation of the right to privacy and other human rights, which is why it should be included in the draft Privacy (Protection) Bill. Other participants argued that a requirement that intercepted communication remains confidential is necessary, but that there is no need to include privacy officers in this. Some participants proposed that an exception for sting operations should be included in this chapter.

Meeting conclusion

The third Privacy Round Table entailed a discussion of the definitions used in the draft Privacy (Protection) Bill 2013, as well as of chapters II, III and IV on the right to privacy, the protection of personal data and the interception of communications. The majority of the participants agreed that India needs a privacy legislation and that individuals´ data should be legally protected. However, participants disagreed in regards to how data would be safeguarded and the extent to which data collection, processing, sharing, disclosure, destruction and retention should be regulated. This was supplemented by the debate on self-regulation and co-regulation; participants disagreed on whether the industry should regulate the use of customers´ data autonomously from government regulation or whether the industry should co-operate with the Privacy Commissioner for the regulation of the use of data. Though a consensus was not reached in regards to co-regulation and self-regulation, the majority of the participants agreed upon the establishment of a privacy legislation which would safeguard individuals´ personal data. The major issue, however, with the creation of a privacy legislation in India would probably be its adequate enforcement.