Why the DNA Bill is open to misuse: Sunil Abraham

CIS circulated a detailed dissent note earlier this year on the draft of the Bill. As the government gets ready to table the Bill in Parliament, CIS Executive Director Sunil Abraham tells Kanika Datta why the provisions of the Bill are open to misuse and invasion of privacy. Edited excerpts:

Why does Centre for Internet and Society reject using DNA analysis for non-forensic use as set out in the Human DNA Profiling Bill in its current form? What are the possible risks involved here?

The problem here is that the introduction to the Bill talks of DNA matches "without a doubt". But the way we understand it, biometric technology depends on approximate matching and not discrete matching. Unlike, say, the technology used for matching digital signatures, machines for matching DNA, fingerprints or the iris specify a false positive ratio when they leave the factory - that's what created the controversy in the O J Simpson trial, for example. This means you have to be very conservative in populating the database. For a given false positive ratio - the larger the database the greater the incidence of mistaken identification. That is why we think that for purposes other than forensic use, it would be better to create other databases.

Let me clear: we are not Luddites but neither are we naïve techno-enthusiasts. After all, the Innocence Project in the US has managed to overturn the convictions of many people who were held guilty through DNA evidence. But it is a myth that the more sophisticated the technology the more secure and accurate it is. In fact, the reverse is often true. For instance, the voter machines we use in India are primitive technology but they are much harder to compromise compared to the voting machines used in the US. Given all this, we believe that there should be "process fixes", such as sending DNA collected from a crime scene to two laboratories as a check and balance against the fallibility of human beings and machines.

CIS made the point that the powers of the DNA Board are too wide. In what possible way could these powers be misused since the Board is to be an independent authority?

When this exercise was started, the DNA Board had 26 functions. We proposed that this be cut this down to ten, which was accepted by a sub-committee. But when the final Bill came back it rejected the consensus view and restored the 26 functions, including things like "raising the general awareness". All this detracts from the Board's primary role and efficiency and expands its discretionary powers. It is true that a good regulator needs some amount of discretion but this should be a limited discretion within a tightly defined scope -- this is true for any regulator, not just the DNA Board.

The provision that no civil suit can be entertained on any matter on which the DNA Board is empowered under the Act looks excessive. Is there any precedent that explains why this provision was introduced? What kind of oversight and checks and balances are there in other jurisdictions that could be incorporated in the Indian law?

I can understand the logic here; the government is trying to ensure that the regulator has final say. After all, if you look at telecom, the decisions of the TDSAT (Telecom Dispute Settlement & Appellate Tribunal) can be appealed in the High Court and the Supreme Court. But eliminating judicial appeal as this Bill has state amounts to a violation of classic regulatory design by circumventing the appellate process. Ideally, we need a tripartite separation of law in which the executive frames policies, the DNA board implements them and the courts adjudicate upon them.

You have said the term "DNA Analysis" has not been defined. Could you explain the possible risks of the absence of a definition?

DNA analysis is of many types and some of them allow you to get to know a person quite intimately in terms of their medical history, genetic traits and so on. But forensic analysis looks at a limited set of markers which are essentially privacy-protecting and from which no genetic traits can be determined. You can't, for instance, do a study on the genetic make-up of criminals from this analysis. Now, if this Bill is around law enforcement - which we know is the policy intention - then the DNA analysis should be limited to those markers. That would reduce the chances of abuse.

You have also criticised the low standards of information disclosure and suggest the issue should be vested in an independent third party rather than the DNA Bank Manager. Could you explain how this would help?

In information and technology and telecom there is an executive authorisation mechanism in place for information sharing that requires the home secretary's permission for non-emergency situations and the head of the police station in the case of an emergency. We want a similar authorisation process - say, a judge and an established paper trail so that there are proper checks and balances. When personal information is involved, even the DNA Board is not well placed because its members are scientists whereas disclosure of personal information is a question of the law.

You have said the Bill has not been brought in line with the nine national privacy principles set out by an expert committee in 2012. Shouldn't a privacy law precede the passing of the DNA Bill in any case?

It's not a chicken-and-egg situation, but the point to consider is that the world is moving towards European data protection principles, and something like 100 countries have adopted it. If we in India want to trade in European personal information (via our BPO and outsourcing businesses) we must have a law that is adequate from the data protection perspective. This means, among other things, mandating that anyone whose DNA profile is accessed receives a notice to this effect, for instance. We know that the Department of Personnel and Training has incorporated the principles set out in the Justice Shah report in the privacy Bill two years ago but we haven't heard anything about it since. If and when this Bill is enacted, it will have overriding powers over a host of laws. But where the DNA Bill is concerned, there is no reason for it not to take cognisance of a later law.

What has been the government's reaction to this dissent note?

No reaction!