Centre for Internet and Society

February 11: The Day We Fight Back Against Mass Surveillance

divij — 2014-02-14T06:00:05Z

The expansive surveillance being perpetuated by governments and corporations is the single biggest threat to individual liberties in the digital age.

The expanding scope and extent of massive data collection and surveillance undertaken by bodies like the USA’s National Security Agency compromises our privacy and stifles our freedom of speech and expression in its most vital public spheres, affecting the civil liberties of citizens of countries all across the world.

The previous year has been a watershed year for reclaiming the internet as a free and open space, primarily through the exposure of the unwarranted systems of surveillance that threaten it, by whistle-blowers like Edward Snowden and WikiLeaks. Despite all these efforts, they have only managed a dent in the surveillance regimes, which continue unbridled, with the protection of the state and the surveillance industry. The future of a free internet depends upon the systematic challenge of these programs by the millions of internet users they affect.

February 11, 2014 is the day we fight back against mass surveillance. Organized by the Electronic Frontier Foundation, and supported by thousand of organizations like Mozilla and the Centre for Internet and Society, on this day of action, citizens around the world will demand an end to these programs that threaten the freedom of the internet. You can support this cause by signing and supporting the 13 Principles (International Principles on the Application of Human Rights to Communications Surveillance), and contacting your local media, petitioning your local legislators and telling your friends and colleagues about the topic. Publicizing the movement and creating a buzz around it will help spread the message to many others across the internet. Do anything that will make the fight more visible and viable, such as organizing or attending public lectures, or creating tools or memes or art to spread information. For more ways in which you can contribute, and more information on the event, visit the website.

The users of the internet deserve a free and open internet and deserve and end to mass surveillance. If we can make enough noise, make enough of an impact, we can greatly bolster the movement for reclaiming the internet.

For more details visit http://editors.cis-india.org/internet-governance/blog/the-day-we-fight-back-against-mass-surveillance

European Union Draft Report Admonishes Mass Surveillance, Calls for Stricter Data Protection and Privacy Laws

divij — 2014-09-30T08:52:45Z

Ever since the release of the “Snowden files”, the secret documents evidencing the massive scale of surveillance undertaken by America’s National Security Agency and publically released by whistle-blower Edward Snowden, surveillance in the digital age has come to the fore of the global debate on internet governance and privacy.

The Committee on Civil Liberties, Justice and Home Affairs of the European Parliament in its draft report on global surveillance has issued a scathing indictment of the activities of the NSA and its counterparts in other member nations and is a welcome stance taken by an international body that is crucial to the fight against surveillance.

The "European Parliament Draft Report on the US NSA surveillance programme, surveillance bodies in various Member States and their impact on EU citizens’ fundamental rights and on transatlantic cooperation in Justice and Home Affairs" released on the 8^th of January, 2014, comprehensively details and critiques the mass surveillance being undertaken by government agencies in the USA as well as within the EU, from a human rights and privacy perspective. The report examines the extent to which surveillance systems are employed by the USA and EU member-states, and declares these systems in their current avatars to be unlawful and in breach of international obligations and fundamental constitutional rights including "the freedom of expression, of the press, of thought, of conscience, of religion and of association, private life, data protection, as well as the right to an effective remedy, the presumption of innocence and the right to a fair trial and non-discrimination".

Furthermore, the report points to the erosion of trust between the EU and the US as well as amongst member states as an outcome of such secret surveillance, and criticises and calls for a suspension of the data-sharing and transfer agreements like the Terrorist Finance Tracking Program (TFTP), which share personal information about EU citizens with the United States, after examining the inadequacy of the US Safe Harbour Privacy principles in ensuring the security of such information.

After considering the secret and unregulated nature of these programmes, the report points to the need of restricting surveillance systems and criticizes the lack of adequate data protection laws and privacy laws which adhere to basic principles such as necessity, proportionality and legality.. It also questions the underlying motives of these programmes as mere security-tools and points to the possible existence of political and economic motives behind their deployment. Recognizing the pitfalls of surveillance and the terrible potential for misuse, the report "condemns in the strongest possible terms the vast, systemic, blanket collection of the personal data of innocent people, often comprising intimate personal information; emphasises that the systems of mass, indiscriminate surveillance by intelligence services constitute a serious interference with the fundamental rights of citizens; stresses that privacy is not a luxury right, but that it is the foundation stone of a free and democratic society; points out, furthermore, that mass surveillance has potentially severe effects on the freedom of the press, thought and speech, as well as a significant potential for abuse of the information gathered against political adversaries."

Amongst the recommendations in the 51-page report are calls for a prohibition of mass surveillance and bulk data collection, and an overhaul of the existing systems of data-protection across the European Union and in the US to recognize and strengthen the right to privacy of their citizens, as well as the implementation of democratic oversight mechanisms to check security and intelligence agencies. It also calls for a review of data-transfer programmes and ensuring that standards of privacy and other fundamental rights under the European constitution are met. The committee sets out a 7-point plan of action, termed the European Digital Habeus Corpus for Protecting Privacy, including adopting the Data Protection Package, suspending data transfers to the US until a more comprehensive data protection regime is through an Umbrella Agreement, enhancing fundamental freedoms of expression and speech, particularly for whistleblowers, developing a European Strategy for IT independence and developing the EU as a reference player for democratic and neutral governance of the internet.

Though this draft report has no binding legal value as yet, the scathing criticism has assisted in calling to the attention of the global community the complex issues of internet governance and privacy and surveillance, and generated debate and discourse around the need for an overhaul of the current system. The recent decision of the US government to ‘democratize’ the internet by handing control of the DNS root zone to an international body, and thereby relinquishing a large part of its means of controlling the internet, is just one example of the systemic change that this debate is generating.

For more details visit http://editors.cis-india.org/internet-governance/blog/european-union-draft-report-admonishes-mass-surveillance

Calcutta High Court Strengthens Whistle Blower Protection

divij — 2014-02-24T06:38:44Z

Calcutta High Court has ordered for protection of whistle blower's privacy in its November 20, 2013 order. The court has directed the government to accept RTI applications without the applicant's personal details.

In the absence of any law for the protection of whistle-blowers in the country, exposing the rampant corruption in our public institutions has become a hazardous occupation, with reports of threat and intimidation and even incidents of murder of whistle-blowers commonplace.[1] With the Whistle blower’s Protection Bill in abeyance and without any strict laws protecting the identities of the whistle-blowers who challenge such a corrupt system, even the mechanisms like the Right to Information Act which are meant to safeguard against systemic abuse and ensure transparency are being severely undermined.

For this reason, the Calcutta High Court’s affirmation of whistle-blowers’ privacy and identity protection is an important development. Through its order on the 20th of November, 2013, the Calcutta High Court held that for the purposes of section 6(2), which requires an application to the Public Information Officer to provide contact details of the applicant, it is sufficient in such application to disclose only the post-box number of the applicant. The court directed the Government to accept RTI applications without personal details or detailed whereabouts, when a post-box number or sufficient detail has been provided to establish contact between the whistle-blower and the authority. However if a public authority has any difficulty contacting the applicant through the Post Box No. the applicant may be asked to provide other contact details. The court further directed that personal details of applicants are not to be posted on the authorities’ websites.

The order, which was notified by the Government last week, ensures to some extent the protection of a whistle-blowers identity, and reduces the chances of the RTI being undermined by threats or acts of violence by those who are a part of the corrupt system, against persons exercising their right to information. However, its implementation is liable to be contingent on the authorities’ interpretation of when it would be “difficult” to establish contact between the authority and the applicant. Certain practical difficulties could also undermine the actual impact of the order, such as the fact that many applications are sent through registered or speed post, which cannot be mailed to a post-box number, especially since ordinary post cannot be tracked online like speed or registered post.[2]

Developing a system in which ordinary citizens do not have to fear retaliation for exposing corruption requires a comprehensive legislation protecting whistle-blowers identities and ensuring data security. However, the important message this judgement sends out is that the judiciary is still committed to protecting whistle-blowers, in lieu of the government’s actions. This is a particularly important stance taken by the Court, considering the Supreme Court in the past has refused to frame guidelines for whistle-blower protection, citing the imperative in enacting a whistle-blower legislation to be the Parliament’s.[3]

A full text of the judgement is available here.

[1].Whistleblower shot dead in Bihar, THE HINDU, available at http://www.thehindu.com/news/national/whistleblower-shot-dead-in-bihar/article4542293.ece; Tamil Nadu Whistleblower alleges death threats; Silence from Government, NDTV, available at http://www.ndtv.com/article/india/tamil-nadu-whistleblower-alleges-death-threats-silence-from-govt-410450.

[2]. Indian Postal Tracking Portal, http://www.indiapost.gov.in/tracking.aspx.

[3]. Supreme Court refuses to frame guidelines for protection of whistleblowers, Daily News and Analysis, available at http://www.dnaindia.com/india/report-supreme-court-refuses-to-frame-guideline-for-protection-of-whistleblowers-1525622.

For more details visit http://editors.cis-india.org/internet-governance/blog/calcutta-hc-strengthens-whistle-blower-protection

A Review of the Functioning of the Cyber Appellate Tribunal and Adjudicatory Officers under the IT Act

divij — 2014-07-03T05:43:23Z

Tribunals and quasi-judicial bodies are a regular feature of the Indian judicial system, as they provide for easier and less onerous methods for dispute resolution, especially disputes which relate to technical areas and often require technical knowledge and familiarity with specialised factual scenarios.

Further, quasi-judicial bodies do not have the same procedural restrictions as proper courts, which makes the adjudication of disputes easier. The Information Technology Act of India, which regulates several important aspects of electronic information, including the regulation of private electronic transactions as well as detailing civil and criminal offences relating to computers and electronic information, contemplates a specialised dispute resolution mechanism for disputes relating to the offences detailed under the Act. The Act provides for the establishment of quasi-judicial bodies, namely adjudicating officers under S.46, to hear disputes arising out of Chapter IX of the Act, namely, offences of a civil nature under S.43, 43A, 44 and 45 of the Act, as well as criminal offences described under Chapter XI of the Act. The adjudicating officer has the power to both award compensation as damages in a civil remedy, as well as impose penalties for the contravention of the Act,[1] and therefore has powers of both civil and criminal courts. The first appellate body provided in the Act, i.e. the authority that any party not satisfied by the decision of the adjudicating officer can appeal to, is the Cyber Appellate Tribunal, consisting of a Chairperson and any other members so prescribed by the Central Government.[2] The second appeal, if a party is aggrieved by the decision of the Cyber Appellate Tribunal, may be filed before the High Court having jurisdiction, within 60 days from the date of communication of the order.[3]

Functioning of the Offices of the State Adjudicating Officers and the Cyber Appellate Tribunal

The office of the adjudicating officer is established under S.46 of the IT Act, which provides that the person appointed to such a post must be a government officer of a rank not below that of a Director or an equivalent rank, and must have experience both in the field of Information Technology as well as legal or judicial experience.[4] In most cases, the appointed adjudicating officer is the Principle Secretary to the Department of Information Technology in the state.[5] The decisions of these adjudicating officers determine the scope and meaning of several provisions of the IT Act, and are instrumental in the development of the law in this field and filling a lacuna regarding the interpretation of these important provisions, particularly in areas such as data protection and privacy.[6] However, despite the large number of cyber-crime cases being registered across the country,[7] there is a lack of available judgements on the adjudication of disputes under Sections 43, 43A, 44 and 45 of the Act. Of all the states, only the websites of the Departments of Information Technology in Maharashtra,[8], Tamil Nadu[9], New Delhi[10], and Haryana[11] have reported judgements or orders of the Adjudicating Officers. The adjudicating officer in Maharasthra, Rajesh Aggarwal, has done a particularly commendable job, having disposed of 51 cases under the IT Act, with 20 cases still pending.

The first Cyber Appellate Tribunal set up by the Central Government is located at New Delhi. Although a second branch of the Tribunal was to be set up in Bangalore, no efforts seem to have been made in this regard.[12] Further, the position of the Chairperson of the Appellate Tribunal, has been left vacant since 2011, after the appointed Chairperson attained the age of superannuation and retired. Although judicial and technical members have been appointed at various points, the tribunal cannot hold hearings without a chairperson. A total of 17 judgements have been passed by the Cyber Appellate Tribunal prior to the retirement of the chairperson, while the backlog of cases is continuously growing.[13] Despite a writ petition being filed before the Karnataka High Court and the secretary of the Department of IT coming on record to state that the Chairperson would be appointed within 6 months (of September 2013), no action seems to have been taken in this regard, and the lacunae in the judicial mechanism under the IT Act continues. The proper functioning of adjudicating officers and the Cyber Appellate Tribunal is particularly necessary for the functioning of a just judicial system in light of the provisions of the Act (namely, Section 61) which bar the jurisdiction of ordinary civil courts in claims below the amount of Rs. 5 Crores, where the adjudicating officer or the CAT is empowered.[14]

Analysis of Cases Filed under Section 43A

Section 43A of the Information Technology Act was inserted by the 2008 Amendment, and is the principle provision governing protection of information held by intermediaries under the Act. Section 43A provides that “body corporates” handling “sensitive personal data” must implement reasonable security practices for the protection of this information. If it is negligent in providing or maintaining such reasonable security practices, the body corporate is to be held liable and must pay compensation for the loss occurred.[15] Rule 3 of the Draft Reasonable Security Practices Rules, defines sensitive personal data as including – passwords, user details as provided at the time of registration or thereafter, information related to financial information such as Bank account/ credit card /debit card /other payment instrument details of the users, physiological and mental health conditions, medical records and history, biometric information, information received by body corporate for processing, stored or processed under lawful contract or otherwise and call data records.[16]

All the decisions of appointed adjudicators are available for an analysis of Section 43A are from the adjudicating officer in Maharashtra, Mr. Rajesh Tandon, who despite having no judicial experience, has very cogent analysis and knowledge of legal issues involved in the cases, which is commendable for a quasi-judicial officer.

One class of cases, constituting a major chunk of the claims, is where the complainant is claiming against a bank for the fraudulent transfer of funds from the claimants account to another account. In most of these cases, the adjudicating officer examined the compliance of the bank with “Know Your Customer” norms and guidelines framed by the Reserve Bank of India for prevention of banking fraud and, where such compliance was found to be lacking and information which allowed the bank accounts of the complainant was allowed to be accessed by fraudsters, the presumption is that the bank was negligent in the handling of “sensitive personal information”,[17] by failing to provide for reasonable security practices and consequently was liable for compensation under S.43A, notwithstanding that the complainant also contributed to compromising certain personal information by responding to phishing mails,[18] or divulging information to other third parties.[19] These instances clearly fall within the scope of Section 43A, which protects “information related to financial information such as Bank account/ credit card /debit card /other payment instrument details of the users” as sensitive personal data from negligent handling by body corporates. The decisions of the adjudicating officer must be applauded for placing a higher duty of care on banks to protect informational privacy of its customers, given that they are in a position where they ought to be well equipped to deal with intimate financial information and holding them accountable for lack of proper mechanisms to counter bank fraud using stolen information, which reflects in the compensation which the banks have been liable to pay, not only as indemnification for losses, but also punitive damages.[20]

In Nirmalkumar Bhagerwal v IDBI Bank and Meenal Bhagerwal, the sensitive financial information of the complainant, namely, the bank statement, had been accessed by the complainants wife. In holding the bank to be liable for divulging the same, and that access to personal information by a spouse is also covered under S.43A, the officer seems to have imputed the loss of privacy on account of such negligence as ‘wrongful loss’ which deserves compensation. One anomalous decision of the officer was where the operator of an ATM was held liable for fraudulent credit card transactions in that Machine, due to “reasonable security practices” such as security personnel or CCTV footage, and therefore causing the loss of “sensitive personal data”. However, it is difficult to see how ATM operators can be held liable for failing to protect sensitive information from being divulged, when the case is simply of a person fraudulently using a credit card.

Another class of cases, generally linked with the above cases, is complaints against cell phone providers for divulging information through falsely procured Sim Cards. In such instances, the officer has held that by negligently allowing the issuance of duplicate sim cards, the phone company has led to the access of sensitive personal data and thus caused wrongful loss to the complainant. This interpretation of Section 43A is somewhat confusing. The officer seems to have interpreted the provisions of Section 43A to include carriers of the information which was originally sent through the computer resource of the banking companies. In this way, they are imputed the status of “handlers” of sensitive personal information, and their communications infrastructure through which the information is sent is the “computer resource” which it operates for the purpose of the Act. Therefore, through their negligence, they are abetting the offence under 43A.[21]

For example, in the case of Sanjay Govind Dhandhe v ICICI and Vodafone, the officer remarked that –“A SIM card is a veritable key to person’s sensitive financial and personal information. Realizing this, there are clear guidelines issued by the DOT regarding the issuance of SIM cards. The IT Act also intends to ensure that electronic personal and sensitive data is kept secured and reasonable measures are used to maintain its confidentiality and integrity. It is extremely crucial that Telecom companies actively follow strict security procedures while issuing SIM cards, especially in wake of the fact that mobiles are being increasingly used to undertake financial transactions. In many a case brought before me, financial frauds have been committed by fraudsters using the registered mobile numbers of the banks’ account holders.” Therefore, intermediaries such as telecom companies, which peripherally handle the data, are also liable under the same standards for ensuring its privacy. The adjudicating officer has also held telephone companies liable for itemized phone bills as Call Data Records negligently divulged by them, which again clearly falls under the scope of the Reasonable Security Practices Rules.[22]

Note:

"Credentek v Insolutions (http://it.maharashtra.gov.in/Site/Upload/ACT/DIT_Adjudication_Credentek_Vs_Insolutions-28012014.pdf) . This case holds that banks and the National Payments Corporation of India were liable under S. 43A for divulging information relating to transactions by their customers to a software company which provides services to these banks using the data, without first making them sign non-disclosure agreements. The NCPI was fined a nominal amount of Rs. 10,000."

[1]. Section 46, Information Technology Act, 2000.

[2]. Section 48 and 49 of the Information Technology Act, 2000 (Amended as of 2008).

[3]. Section 62, IT Act. However, The High Court may extend this period if there was sufficient cause for the delay.

[4]. S. 46(3), Information Technology Act, “No person shall be appointed as an adjudicating officer unless he possesses such experience in the field of Information Technology and Legal or Judicial experience as may be prescribed by the Central Government.”

[5]. From whatever data is available, the adjudicating officers in the states of Maharashtra, New Delhi, Haryana, Tamil Nadu and Karnataka are all secretaries to the respective state departments relating to IT.

[6]. See http://cis-india.org/internet-governance/blog/analysis-of-cases-filed-under-sec-48-it-act-for-adjudication-maharashtra; Also see the decision of the Karnataka adjudicating officer which held that body corporates are not persons under S.43 of the IT Act, and thus cannot be liable for compensation or even criminal action for offences under that Section, available at http://www.naavi.org/cl_editorial_13/adjudication_gpl_mnv.pdf.

[7]. Maharashtra Leads in War Against Cyber Crime, The Times of India, available at http://timesofindia.indiatimes.com/city/mumbai/Maharashtra-leads-in-war-against-cyber-crime/articleshow/30579310.cms. (18^th February, 2014).

[8]. https://it.maharashtra.gov.in/1089/IT-Act-Judgements

[9]. http://www.tn.gov.in/documents/atoz/J

[10]. http://www.delhi.gov.in/wps/wcm/connect/DoIT_IT/doit_it/it+home/orders+of+adjudicating+officer

[11]. http://haryanait.gov.in/cyber.htm

[12]. Bangalore Likely to host southern chapter of Cyber Appellate Tribunal, The Hinduk http://www.thehindu.com/news/national/karnataka/bangalore-is-likely-to-host-southern-chapter-of-cyber-appellate-tribunal/article3381091.ece (2^nd May, 2013).

[13]. http://catindia.gov.in/Judgement.aspx

[14]. Section 61 of the IT Act – ‘No court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an adjudicating officer appointed under this Act or the Cyber Appellate Tribunal constituted under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. Provided that the court may exercise jurisdiction in cases where the claim for injury or damage suffered by any person exceeds the maximum amount which can be awarded under this Chapter.’

[15]. Section 43A, Information Technology Act, 2000 – ‘Compensation for failure to protect data (Inserted vide ITAA 2006) Where a body corporate, possessing, dealing or handling any sensitive personal data or information in a computer resource which it owns, controls or operates, is negligent in implementing and maintaining reasonable security practices and procedures and thereby causes wrongful loss or wrongful gain to any person, such body corporate shall be liable to pay damages by way of compensation, to the person so affected. (Change vide ITAA 2008)

Explanation: For the purposes of this section (i) "body corporate" means any company and includes a firm, sole proprietorship or other association of individuals engaged in commercial or professional activities (ii) "reasonable security practices and procedures" means security practices and procedures designed to protect such information from unauthorized access, damage, use, modification, disclosure or impairment, as may be specified in an agreement between the parties or as may be specified in any law for the time being in force and in the absence of such agreement or any law, such reasonable security practices and procedures, as may be prescribed by the Central Government in consultation with such professional bodies or associations as it may deem fit. (iii) "sensitive personal data or information" means such personal information as may be prescribed by the Central Government in consultation with such professional bodies or associations as it may deem fit.

[16]. Draft Reasonable Security Practices Rules under Section 43A of the IT Act, available at http://www.huntonfiles.com/files/webupload/PrivacyLaw_Reasonable_Security_Practices_Sensitive_Personal_Information.pdf.

[17]. Ravindra Gunale v Bank of Maharashtra, http://it.maharashtra.gov.in/Site/Upload/ACT/DIT_Adjudication_RavindraGunale_Vs_BoM&Vodafone_20022013.PDF. Ram Techno Pack v State Bank of India, http://it.maharashtra.gov.in/Site/Upload/ACT/DIT_Adjudication_RamTechno_Vs_SBI-22022013.pdf.

Srinivas Signs v IDBI, http://it.maharashtra.gov.in/Site/Upload/ACT/DIT_Adjudication_SreenivasSigns_Vs_IDBI-18022014.PDF.

Raju Dada Raut v ICICI Bank, http://it.maharashtra.gov.in/Site/Upload/ACT/DIT_Adjudication_RajuDadaRaut_Vs_ICICIBank-13022013.pdf

Pravin Parkhi v SBI Cards, http://it.maharashtra.gov.in/Site/Upload/ACT/DIT_Adjudication_PravinParkhi_Vs_SBICardsPayment-30122013.PDF.

[18]. Sourabh Jain v ICICI, http://it.maharashtra.gov.in/Site/Upload/ACT/DIT_Adjudication_SourabhJain_Vs_ICICI&Idea-22022013.PDF.

[19]. Poona Automobiles v Punjab National Bank, https://it.maharashtra.gov.in/Site/Upload/ACT/DIT_Adjudication_PoonaAuto_Vs_PNB-22022013.PDF

[20]. Amit Patwardhan v Bank of Baroda, http://it.maharashtra.gov.in/Site/Upload/ACT/DIT_Adjudicaton_AmitPatwardhan_Vs_BankOfBaroda-30122013.PDF.

[21]. Ravindra Gunale v Bank of Maharashtra, http://it.maharashtra.gov.in/Site/Upload/ACT/DIT_Adjudication_RavindraGunale_Vs_BoM&Vodafone_20022013; Raju Dada Raut v ICICI Bank, http://it.maharashtra.gov.in/Site/Upload/ACT/DIT_Adjudication_RajuDadaRaut_Vs_ICICIBank-13022013.pdf.

[22]. Rohit Maheshwari v Vodafone, http://it.maharashtra.gov.in/Site/Upload/ACT/DIT_Adjudication_RohitMaheshwari_Vs_Vodafone&ors-04022014.PDF.

For more details visit http://editors.cis-india.org/internet-governance/blog/review-of-functioning-of-cyber-appellate-tribunal-and-adjudicatory-officers-under-it-act