Centre for Internet and Society

Interview with Mathew Thomas from the Say No to UID campaign - UID Court Cases

maria — 2014-01-27T12:47:49Z

The Centre for Internet and Society (CIS) recently interviewed Mathew Thomas from the Say No to UID campaign about his ongoing efforts to challenge the UID scheme legally in the Bangalore High Court and Supreme Court of India. Read this interview and gain an interesting insight on recent legal developments with regards to the UID!

Hi Mathew! We've heard that you've been in court a lot over the last few years with regards to the UID scheme. Could you please tell us about the UID case you have filed?

In early 2012, I filed a civil suit at the Bangalore Court to declare the UID scheme illegal and to stop further biometric enrollments. I alleged that foreign agencies are involved in the process of biometric enrollment, and that cases of corruption have occurred with regards to the companies contracted by the UID Authority of India (UIDAI). Many dubious companies have been empanelled for biometric enrollments by the UIDAI and many cases of corruption have been noted, especially with regards to the preparation of biometric databases for below poverty line (BPL) ration cards in Karnataka.

In 2010, according to a government audit report, COMAT Technologies Private Limited had a contract with the Karnataka Government and was required to undertake a door-to-door survey and to set up biometric devices. COMAT Technologies Private Limited was paid ₹ 542.3 million for this purpose, but it turns out that the company did not comply with the terms of the contract and did not fullfill its obligations under the contract. Even though COMAT Technologies Private Limited had been contracted and had been paid ₹ 542.3 million, the company did not hand over any biometric device to the Karnataka Government. Instead, when the company got questioned, it walked away from the contract in 2010, even though it had been paid for a service it did not deliver.

In the same year, 2010, COMAT Technologies was empanelled as an Enrolling Agency of the UIDAI. COMAT Technologies also carries out enrollments in Mysore and a TV channel sting operation revealed that fake IDs were being issued in the Mysore enrollment center. After much persuasion, the e-Government department of Karnataka informed me that they have filed an FIR. And this is just one case of a corrupt company empanelled as an enrollement agency with the UIDAI. Many similar cases with other companies have occurred in other cities in India, such as Mumbai, where the empanelled agencies have committed fraud and police complaints have been filed. But unfortunately, there is no publicly available information on the state of the investigations.

As such, I filed a case at the Bangalore Court and stated that the whole UID system is insecure, that it will not achieve the objective of preventing leakages of welfare subsidies and that, therefore, it is a waste of public funds, which also affects individuals' right to privacy and right to life. In my complaint in the civil court I made allegations of corruption and dangers to national security backed by documentary evidence. According to Order 8 of the Civil Procedure Code (CPC), defendants are required to specifically deny each of the allegations against them and if they don't, the court is required to accept the allegations as accurate. According to law, vague, bald denials are not acceptable in courts. Interestingly enough, the defendants in this court case did not deny any of the allegations, but instead stated that they (allegations) are “trivial” and requested the judge to dismiss the case without a trial. The judge requested the defendants to file a written application, asking for the suit to be dismissed under Order 7, Rule 11, of the Civil Procedure Code. Nonetheless, in May 2012, the judge observed that this is a serious case which should not be dismissed and that he would like to have a daily hearing of the case, especially since the case was grounded on the allegation that thousands of crores of rupees of public money are spent every day.

However, one month later in June 2012, the judge dismissed the case by stating that I did not have a “cause of action” and that the case is not of civil nature under Section 9 of the Code of Civil Procedure. I argued that tax payers have a right to know where their money is going and that we all have a right to privacy and that therefore, I did have a cause for action. I quoted the Supreme Court case setting out the law relating to the meaning of “civil nature”. The Apex court said, “Anything which is not of criminal nature is of civil nature”. I also quoted several court precedents which explained conditions under which complaints could be dismissed under Order VII Rule 11. Unfortunately though, the judge dismissed all of this and suggested that I should take this case to the High Court or to the Supreme Court, since the Bangalore Court did not have the authority to address the violation of fundamental human rights. In my opinion, the fallacy in this judgement was that, on the one hand, the judge stated in his order that there was “no cause for action”, but on the other hand, he said that I should take the case to the High Court or to the Supreme Court! And on top of that, the judge stated that my case was frivolous and levied on me a Rs. 25, 000 fine, because apparently I was “wasting the court's time” !

In addition to all of this, the judge made a very intriguing statement in his order: he claimed that the biometric enrollment with the UIDAI is voluntary and that therefore I need not enrol. I argued that although the UID is voluntary in theory, it is actually mandatory on many levels, especially since access to many governmental services require enrollment with the UIDAI. Nonetheless, the judge insisted that the UID is purely voluntary and that if I am not happy with the UID, then I should just “stay at home”.

And how did the case continue thereafter?

In October 2012 I appealed against this to the High Court by stating that there was a misapplication of Order 7, Rule 11, of the Civil Procedure Code and requested the High Court to send the suit back for trial at the Bangalore Court.

Now, when you appeal in India, the Court has to issue notices to the opposite party, which are usually sent by registered post. However, nothing was happening, so I filed a number of applications to hear the case. The registrar’s office filed a number of trivial “objections” with which I needed to comply and this took three months, until January 2013. For example, one “objection” was that the lower court order stated the date of the order as "03-07-12", whereas I had mentioned the date as 3 July 2012. Then they would argue that the acknowledgement of the receipt of the notice from the respondents was not received. The High Court is located next to the head post office (GPO) in Bangalore and normally it would be sent there, then directly to the GPO in Delhi and from there to the Planning Commission or to the UIDAI. Yet, the procedure was delayed because apparently the notices weren't sent. In one hearing, the court clerk said that the address of the defendant was wrong and that the address of the Planning Commission should also be included. All in all, it seemed to me like there was some deliberate attempt to delay the procedure and the dismissal of the case by the Bangalore Court seemed very questionable. As a result, in January 2013, I asked the High Court to permit me to personally hand over my appeal to the Government Council. And finally, on 17th December 2013, my appeal was heard by the Bangalore High Court!

Over the last three months, the defendants have not filed any counter affidavit. Instead, the Government Council came to the High Court and stated that I have not filed a “paper book” (which includes depositions and evidence, among other things). However, the judge stated that this is not a case which requires a “paper book”, since my appeal was about the misapplication of Order 7, Rule 11, of the Civil Procedure Code. Then the Government Council asked for more time to review the appeal and it is has been postponed.

Have there been any other recent court cases against the UID?

Yes. While all of this was going on, retired judge, Justice Puttaswamy, filed a petition in the Supreme Court, stating that the UID scheme is illegal, since it violates article 73 of the Constitution. Aruna Roy, who is an activist at the National Council for People’s Right to Information, has also filed a petition where she has questioned the UID because it violates privacy rights and the rights of the poor.

Furthermore, petitions have been filed in the Madras High Court and in the Mumbai High Court. In 2012, it was argued in the Madras High Court that the only legal provision for taking fingerprints exists under the Prisoners Act, whereas the UIDAI is taking the fingerprints of people who are not prisoners and therefore it is illegal. In 2013, Vikram Crishna, Kamayani Bahl and a few others argued in the Mumbai High Court that the right to privacy is being violated through the UID scheme. It is noteworthy that in most of these cases, the defendants have not filed any counter-arguments. The only exceptions were in the Aruna Roy and Puttaswamy cases, where the defendants claimed that the UID is secure and supported it in general. In the end, the Supreme Court directed that the cases in Mumbai and Madras should be clubbed together and addressed by it. As such, the cases filed in the Madras and Mumbai High Courts have been sent to the Supreme Court of India.

Major General Vombathakere also filed a petition in the Supreme Court, arguing that the UID scheme violates individuals' right to privacy. When the counsel for the General commenced his arguments the judge pointed to the possibility of the Government passing the NIA Bill soon, which will contain provisions for privacy, as stated by the Government. As such, the judge implied that if the Government passes such a law the argument, that the Government is implementing the scheme in a legal vacuum, may not be valid.

So what is the status of your pending court cases?

Well, I impleaded myself in Aruna Roy's petition and brought my arguments with regards to corruption in the case of companies contracted with the UIDAI and the danger to national security through the involvement of persons linked to US intelligence agencies. The last hearing in the Supreme Court was on 10th December 2013, but it was postponed to 28 January 2014. So in short, in the Supreme Court I am currently filing a case for investigation with regards to corruption and links with foreign intelligence agencies by companies contracted with the UIDAI, while in the Bangalore High Court, I have appealed a civil trial with regards to the misplacement of Order 7, Rule 11, of the Civil Procedure Code.

For more details visit http://editors.cis-india.org/internet-governance/blog/interview-with-mathew-thomas-from-the-say-no-to-uid-campaign

Brochures.zip

maria — 2013-12-26T05:23:23Z

For more details visit http://editors.cis-india.org/internet-governance/blog/Brochures.zip

Brochures from Expos on Smart Cards, e-Security, RFID & Biometrics in India

maria — 2013-12-26T05:24:39Z

Electronics Today organised a series of expos on smart cards, e-security, RFID and biometric technology in Delhi on 16-18 October 2013. The Centre for Internet and Society is sharing the brochures it collected from these public expos for research purposes.

In Pragati Maidan, New Delhi, many companies from India and abroad gathered to exhibit their products at the following expos which were organised by Electronics Today (India's first electronic exhibition organiser) on 16-18 October 2013:

SmartCards Expo 2013
e-Security Expo 2013
RFID Expo 2013
Biometrics Expo 2013

The Centre for Internet and Society (CIS) attended these exhibitions for research purposes and is sharing the publicly available brochures it gathered through the attached zip file. The use of these brochures constitutes Fair Use.

For more details visit http://editors.cis-india.org/internet-governance/blog/brochures-from-expos-in-india-2013

Big Democracy: Big Surveillance - A talk by Maria Xynou

maria — 2013-12-12T10:23:21Z

Next Tuesday, Maria Xynou will be presenting her latest research on surveillance in India. Come and engage in a discussion on India's controversial surveillance schemes, surveillance industry and much much more!

And so we've heard a lot about the Edward Snowden leaks and about the NSA's controversial mass surveillance projects. But what's happening in India?

It turns out that the world's largest democracy has some of the most controversial surveillance schemes in the world! Some of India's laws, schemes, projects and technologies are unbeatable when it comes to mass surveillance, censorship and control. While India may be a developing country with issues ranging from poverty to corruption, it nonetheless appears to be at the forefront of surveillance on an international level.

Join us at the Centre for Internet and Society (CIS) on 3rd December 2013 to hear about India's surveillance laws, schemes and technologies and to engage in a discussion on the potential implications. All that is required is an open mind, critical thought and a will to challenge that which has not been challenged!

We look forward to seeing you all and to hearing your thoughts, ideas and opinions!

VIDEO

For more details visit http://editors.cis-india.org/internet-governance/events/big-democracy-big-surveillance-a-talk-by-maria-xynou

Why 'Facebook' is More Dangerous than the Government Spying on You

maria — 2013-11-23T08:38:30Z

In this article, Maria Xynou looks at state and corporate surveillance in India and analyzes why our "choice" to hand over our personal data can potentially be more harmful than traditional, top-down, state surveillance. Read this article and perhaps reconsider your "choice" to use social networking sites, such as Facebook.

Do you have a profile on Facebook? Almost every time I ask this question, the answer is ‘yes’. In fact, I think the amount of people who have replied ‘no’ to this question can literally be counted on my right hand. But this is not an article about Facebook per se. It’s more about the ‘Facebooks’ of the world, and of people’s increasing “choice” to hand over their most personal data. More accurate questions are probably:

“Would you like the Government to go through your personal diary? If not, then why do you have a profile on Facebook?”

The Indian Surveillance State

Following Snowden ’s revelations, there’s finally been more talk about surveillance. But what is surveillance?

David Lyon - who directs the Surveillance Studies Centre - defines surveillance as “any collection and processing of personal data, whether identifiable or not, for the purposes of influencing or managing those whose data have been garnered”. Surveillance can also be defined as the monitoring of the behaviour, activities or other changing information of individuals or groups of people. However, this definition implies that individuals and/or groups of people are being monitored in a top-down manner, without this being their “choice”. But is that actually the case? To answer this question, let’s have a look at how the Indian government and corporations operating in India spy on us.

State Surveillance

The first things that probably come to mind when thinking about India from a foreigner’s perspective are poverty and corruption. Surveillance appears to be a “Western, elitist issue”, which mainly concerns those who have already solved their main survival problems. In other words, the most mainstream argument I hear in India is that surveillance is not a real issue, especially since the majority of the population in the country lives below the line of poverty and does not even have any Internet access. Interestingly enough though, the other day when I was walking around a slum in Koramangala, I noticed that most people have Airtel satellites...even though they barely have any clean water!

The point though is that surveillance in India is a fact, and the state plays a rather large role in it. In particular, Indian law enforcement agencies follow three steps in ensuring that targeted and mass surveillance is carried out in the country:

1. They create surveillance schemes, such as the Central Monitoring System (CMS ), which carry out targeted and/or mass surveillance

2. They create laws, guidelines and license agreements, such as the Information Technology (Amendment ) Act 2008, which mandate targeted and mass surveillance and which require ISP and telecom operators to comply

3. They buy surveillance technologies from companies, such as CCTV cameras and spyware, and use them to carry out targeted and/or mass surveillance

While Indian law enforcement agencies don’t necessarily follow these steps in this precise order, they usually try to create surveillance schemes, legalise them and then buy the gear to carry them out.

In particular, surveillance in India is regulated under five laws: the Indian Telegraph Act 1885, the Indian Post Office Act 1898, the Indian Wireless Telegraphy Act 1933, section 91 of the 1973 Code of Criminal Procedure (CrPc ) and the Information Technology (Amendment ) Act 2008. These laws mandate targeted surveillance, but remain silent on the issue of mass surveillance which means that technically it is neither allowed nor prohibited, but remains a grey legal area.

While surveillance laws in India may not mandate mass surveillance, some of their sections are particularly concerning. Section 69 of the Information Technology (Amendment ) Act 2008 allows for the interception of all information transmitted through a computer resource, while requiring that all users disclose their private encryption keys or face a jail sentence of up to seven years. This appears to be quite bizarre, as individuals can only keep their data private and protect themselves from surveillance through encryption.

Section 44 of the Information Technology (Amendment) Act 2008 imposes stiff penalties on anyone who fails to provide requested information to authorities - which kind of reminds us of Orwell’s totalitarian regime in “1984”. Furthermore, section 66A of the same law states that individuals will be punished for sending “offensive messages through communication services”. However, the vagueness of this section raises huge concerns, as it remains unclear what defines an “offensive message” and whether this will have grave implications on the freedom of expression. The arrest of two Indian women last November over a Facebook post reminds us of this.

Laws in India may not mandate mass surveillance, but guidelines and license agreements issued by the Department of Telecommunications do. In particular, the UAS License Agreement regarding the Central Monitoring System (CMS ) not only mandates mass surveillance, but also attempts to legalise a mass surveillance scheme which aims to intercept all telecommunications and Internet communications in India. Furthermore, the Department of Telecommunications has issued numerous guidelines and license agreements for ISPs and telecom operators, which require them to not only be “surveillance-friendly”, but to also enable law enforcement agencies to tap into their servers on the grounds of national security. And then, of course, there’s the new National Cyber Security Policy, which mandates surveillance to tackle cyber-crime, cyber-terrorism, cyber-war and cyber-vandalism.

As both a result and prerequisite of these laws, the Indian government has created various surveillance schemes and teams to aid them. In particular, India ’s Computer Emergency Response Team (CERT ) is currently monitoring “any suspicious move on the Internet” in order to checkmate any potential cyber attacks from hackers. While this may be useful for the purpose of preventing and detecting cyber-criminals, it remains unclear how “any suspicious move” is defined and whether that inevitably enables mass surveillance, without individuals’ knowledge or consent.

The Crime and Criminal Tracking and Network & Systems (CCTNS ) is the creation of a nationwide networking infrastructure for enhancing the efficiency and effectiveness of policing and sharing data among 14,000 police stations across the country. It has been estimated that Rs. 2000 crore has been allocated for the CCTNS project and while it may potentially increase the effectiveness of tackling crime and terrorism, it raises questions around the legality of data sharing and its potential implications on the right to privacy and other human rights - especially if such data sharing results in data being disclosed or shared with unauthorised third parties.

Similarly, the National Intelligence Grid (NATGRID ) is an integrated intelligence grid that will link the databases of several departments and ministries of the Government of India so as to collect comprehensive patterns of intelligence that can be readily accessed by intelligence agencies. This was first proposed in the aftermath of the Mumbai 2008 terrorist attacks and while it may potentially aid intelligence agencies in countering crime and terrorism, enforced privacy legislation should be a prerequisite, which would safeguard our data from potential abuse.

However, the most controversial surveillance scheme being implemented in India is probably the Central Monitoring System (CMS). While several states, such as Assam, already have Internet Monitoring Systems in place, the Central Monitoring System appears to raise even graver concerns. In particular, the CMS is a system through which all telecommunications and Internet communications in India will be monitored by Indian authorities. In other words, the CMS will be capable of intercepting our calls and of analyzing our data on social networking sites, while all such data would be retained in a centralised database. Given that India currently lacks privacy legislation, such a system would mostly be unregulated and would pose major threats to our right to privacy and other human rights. Given that data would be centrally stored, the system would create a type of “honeypot” for centralised cyber attacks. Given that the centralised database would have massive volumes of data for literally a billion people, the probability of error in pattern and profile matching would be high - which could potentially result in innocent people being convicted for crimes they did not commit. Nonetheless, mass surveillance through the CMS is currently a reality in India.

And the even bigger question: How can law enforcement agencies mine the data of 1.2 billion people? How do they even carry out surveillance in practice? Well, that’s where surveillance technology companies come in. In fact, the surveillance industry in India is massively expanding - especially in light of its new surveillance schemes which require advanced and sophisticated technology. According to CIS ’ India Privacy Monitor Map - which is part of ongoing research - Indian law enforcement agencies use CCTV cameras in pretty much every single state in India. The map also shows that Unmanned Aerial Vehicles (UAVs), otherwise known as drones, are being used in most states in India and the DRDO ’s “Netra ” - which is a lightweight drone, not much bigger than a bird - is particularly noteworthy.

But Indian law enforcement agencies also buy surveillance software and hardware which is aimed at intercepting telecommunications and Internet communications. In particular, ClearTrail Technologies is an Indian company - based in Indore - which equips law enforcement agencies in India and around the world with surveillance software which can probably be compared with the “notorious” FinFisher. So in short, there appears to be a tight collaboration between Indian law enforcement agencies and the surveillance industry, which can be clearly depicted in the ISS surveillance trade shows, otherwise known as “the wiretappers’ ball”.

Corporate Surveillance

When I ask people about corporate surveillance, the answer I usually get is: “Corporations only care about their profit - they don’t do surveillance per se”. And while that may be true, David Lyon ’s definition of surveillance - as “any collection and processing of personal data, whether identifiable or not, for the purposes of influencing or managing those whose data have been garnered” - may indicate otherwise.

Corporations, like Google, Amazon and Facebook, may not have an agenda for spying per se, but they do collect massive volumes of personal data and, in cases such as PRISM, allow law enforcement to tap into their servers. Once law enforcement agencies get hold of data collected by companies, such as Facebook, they then use data mining software - equipped by various surveillance technology companies - to process and mine the data. And how do companies, like Google and Facebook, make money off our personal data? By selling it to big buyers, such as law enforcement agencies.

So while Facebook and all the ‘Facebooks’ of the world may not profit from surveillance per se, they do profit from collecting our personal data and selling it to third parties, which include law enforcement agencies. And David Lyon argues that surveillance involves the collection of personal data - which corporations, like Facebook, do - for the purpose of influencing and managing individuals. While this last point can probably be widely debated on, it is clear that corporations share their collected data with third parties, which ultimately leads to the influence or managing of individuals - directly or indirectly. In other words, the collection of personal data, in combination with its disclosure to third parties, is surveillance. So when we think about companies, like Google or Facebook, we should not just think of businesses interested in their profit - but also of spying agencies. After all, “if the product is free , you are the product ”.

Now if we look at online corporations more closely, we can probably identify three categories:

1. Websites through which we buy products and hand over our personal details - e.g. Amazon

2. Websites through which we use services and hand over our personal details - e.g. flight ticket

3. Websites through which we communicate and hand over our personal details - e.g. Facebook

And why could the above be considered “spying” at all? Because such corporations collect massive volumes of personal data and subsequently:

- Disclose such data to law enforcement agencies

- Allow law enforcement agencies to tap into their servers

- Sell such data to “third parties”

What’s notable about so-called corporate surveillance is that, in all cases, there is a mutual, key element: we consent to the handing over of our personal information. We are not forced to hand over our personal data when buying a book online, booking a flight ticket or using Facebook. Instead, we “choose” to hand over our personal data in exchange for a product or service. Now what significantly differentiates state surveillance to corporate surveillance is the factor of “choice”. While we may choose to hand over our most personal details to large online corporations, such as Google and Facebook, we do not have a choice when the government monitors our communications, collects and stores our personal data.

State Surveillance vs. Corporate Surveillance

Both Indian law enforcement agencies and corporations collect massive volumes of personal data. In fact, it is probably noteworthy to mention that Facebook, in particular, collects 20 times more data per day than the NSA in total. In addition, Facebook has claimed that it has received more demands from the US government for information about its users than from all other countries combined. In this sense, the corporate collection of personal data can potentially be more harmful than government surveillance, especially when law enforcement agencies are tapping into the servers of companies like Facebook. After all, the Indian government and all other governments would have very little data to analyse if it weren’t for such corporations.

Surveillance is not just about “spying” or about “watching people” - it’s about much much more. Observing people’s behaviour only really becomes harmful when the data observed is collected, retained, analysed, shared and disclosed to unauthorised third parties. In other words, surveillance is meaningful to examine because it involves the analysis of data, which in turn involves pattern matching and profiling, which can potentially have actual, real-world implications - good or bad. But such analysis cannot be possible without having access to large volumes of data - most of which belong to large corporations, like Facebook. The question, though, is: How do corporations collect such large volumes of personal data, which they subsequently share with law enforcement agencies? Simple: Because we “choose” to hand over our data!

Three years ago, when I was doing research on young people’s perspective of Facebook, all of the interviewees replied that they feel that they are in control of their personal data, because they “choose” what they share online. While this may appear to be a valid point, the “choice” factor can widely be debated on. There are many reasons why people “choose” to hand over their personal data, whether to buy a product, use a service, to communicate with peers or because they feel socially pressured into using social networking sites. Nonetheless, it all really comes down to one main reason: convenience. Today, in most cases, the reason why we hand over our personal data online in exchange for products or services is because it is simply more convenient to do so. And while that is understandable, at the same time we are exposing our data (and ultimately our lives) in the name of convenience.

The irony in all of this is that, while many people reacted to Snowden ’s revelations on NSA dragnet surveillance, most of these people probably have profiles on Facebook. Secret, warrantless government surveillance is undeniably intrusive, but in the end of the day, our profiles on Facebook - and on all the ‘Facebooks’ of the world - is what enabled it to begin with. In other words, if we didn’t choose to give up our personal data - especially without really knowing how it would be handled - large databases would not exist and the NSA - and all the ‘NSAs’ of the world - would have had a harder time gathering and analysing data.

In short, the main difference between state and corporate surveillance is that the first is imposed in a top-down manner by authorities, while the second is a result of our “choice” to give up our data. While many may argue that it’s worse to have control imposed on you, I strongly disagree. When control and surveillance are imposed on us in a top-down manner, it’s likely that we will perceive this - sooner or later - as a direct threat to our human rights, which means that it’s likely that we will resist to it at some point. People usually react to what they perceive as a direct threat, whereas they rarely react to what does not directly affect them. For example, one may perceive murder or suicide as a direct threat due the immediateness of its effect, whereas smoking may not be seen as an equally direct threat, because its consequences are indirect and can usually be seen in the long term. It’s somehow like that with surveillance.

University students have protested on the streets against the installation of CCTV cameras, but how many of them have profiles on social networking sites, such as Facebook? People may react to the installation of CCTV cameras, because it may appear as a direct threat to their right to privacy. However, the irony is that the real danger does not necessarily lie within some CCTV cameras, but rather within the profile of each person on a major commercial social networking site. At very best, a CCTV camera will capture some images of us and through that, track our location and possibly our acquaintances. What type of data is captured through a simple, “harmless” Facebook profile? The following probably only includes a tiny percentage of what is actually captured:

- Personal photos

- Biometrics (possibly through photos)

- Family members

- Friends and acquaintances

- Habits, hobbies and interests

- Location (through IP address)

- Places visited

- Economic standing (based on pictures, comments, etc.)

- Educational background

- Ideas and opinions (which may be political, religious, etc.)

- Activities

- Affiliations

The above list could potentially go on and on, probably depending on how much - or what type - of data is disclosed by the individual. The interesting element to this is that we can never really know how much data we are disclosing, even if we think we control it. While an individual may argue that he/she chooses to disclose an x amount of data, while retaining the rest, that individual may actually be disclosing a 10x amount of data. This may be the case because usually every bit of data hides lots of other bits of data, that we may not be aware of. It all really comes down to who is looking at our data, when and why.

For example, (fictional) Priya may choose to share on her Facebook profile (through photos, comments, or any other type of data) that she is female, Indian, a Harvard graduate and that her favourite book is “Anarchism and other Essays ” by Emma Goldman. At first glance, nothing appears to be “wrong” with what Priya is revealing and in fact, she appears to care about her privacy by not revealing “the most intimate details” of her life. Moreover, one could argue that there is absolutely nothing “incriminating” about her data and that, on the contrary, it just reflects that she is a “shiny star” from Harvard. However, I am not sure if a data analyst would be restricted to this data and if data analysis would show the same “sparkly” image.

In theory, the fact that Priya is an Indian who attended Harvard reveals another bit of information, that Priya did not choose to share: her economic standing. Given that the majority of Indians live below the line of poverty, there is a big probability that Priya belongs to India’s middle class - if not elite. Priya may not have intentionally shared this information, but it was indirectly revealed through the bits of data that she did reveal: female Indian and Harvard graduate. And while there may not be anything “incriminating” about the fact that she has a good economic standing, in India this usually means that there’s also some strong political affiliation. That brings us to her other bit of information, that her favourite author is a feminist, anarchist. While that may be viewed as indifferent information, it may be crucial depending on the specific political actors in the country she’s in and on the general political situation. If a data analyst were to map the data that Priya chose to share, along with all her friends and acquaintances that she inevitably has through Facebook, that data analyst could probably tell a story about her. And the concerning part is that that story may or may not be true. But that doesn’t really matter.

Today, governments don’t judge us and take decisions based on our version of our data, but based on what our data says about us. And perhaps, under certain political, social and economic circumstances, our “harmless” data could be more incriminating than what we think. While an individual may express strong political views within a democratic regime, if that political system were to change in the future and to become authoritarian, that individual would possibly be suspicious in the eyes of the government - to say the least. This is where data retention plays a significant role.

Most companies retain data indefinitely or for a long period of time, which means that future, potentially less-democratic governments may have access to it. And the worst part is that we can never really know what data is being held about us, because within data analysis, every bit of data may potentially entails various other bits of data that we are not even aware of. So, when we “choose” to hand over our data, we don’t necessarily know what or how much we are choosing to disclose. Thus, this is why I agree with Bruce Schneier’s argument that people have an illusionary sense of control over their personal data.

Social network analysis software is specifically designed to mine huge volumes of data that is collected through social networking sites, such as Facebook. Such software is specifically designed to profile individuals, to create “trees of communication” around them and to match patterns. In other words, this software tells a story about each and every one of us, based on our activities, interests, acquaintances, and all other data. And as mentioned before, such a story may or may not be true.

In data mining, behavioural statistics are being used to analyse our data and to predict how we are likely to behave. When applied to national databases, this may potentially amount to predicting how masses or groups within the public are likely to behave and to subsequently control them. If a data analyst can predict an individual’s future behaviour - with some probability - based on that individuals’ data, the same could potentially occur on a mass, public level. As such, the danger within surveillance - especially corporate surveillance through which we voluntarily disclose massive amounts of data about ourselves - is that it appears to come down to public control.

According to security expert Bruce Schneier, data today is a byproduct of the Information Society. Unlike an Orwellian totalitarian state where surveillance is imposed in a top-down manner, surveillance today appears to widely exist because we indirectly choose and enable it (by handing over our data to online companies), rather than it being imposed on us in a solely top-down manner. However, contemporary surveillance may potentially be far worse than that described in Orwell’s “1984”, because surveillance is publicly perceived to be an indirect threat - if considered to be a threat at all. It is more likely that people will resist a direct threat, than an indirect threat, which means that the possibility of mass violations of human rights as a result of surveillance is real.

Hannah Arendt argued that a main prerequisite and component of totalitarian power is support by the masses. Today, surveillance appears to be socially integrated within societies which indicates that contemporary power fueled by surveillance has mass support. While the argument that surveillance is being socially integrated can potentially be widely debated on and requires an entire in depth research of its own, few simple facts might be adequate to prove it at this stage. Firstly, CCTV cameras are installed in most countries, yet there has been very little resistance - on the contrary, there appears to be a type of universal acceptance on the grounds of security. Secondly, different types of spy products exist in the market - such as Spy Coca Cola cans - which can be purchased by anyone online. Thirdly, countries all over the world carry out controversial surveillance schemes - such as the Central Monitoring System in India - yet public resistance to such projects is limited. And while one may argue that the above cases don’t necessarily prove that surveillance is being socially integrated, it would be interesting to look at a fourth fact: most people who have Internet access choose to share their personal data through the use of social networking sites.

Reality shows, such as Big Brother, which broadcast the surveillance of people’s lives and present it as a form of entertainment - when actually, I think it should be worrisome - appear to enable the social integration of surveillance. The very fact that we all probably - or, hopefully - know that Facebook can share our personal data with unauthorised third parties and - now, after the Snowden revelations - that governments can tap into Facebook’s servers, should be enough to convince us to delete our profiles. Yet, why do we still all have Facebook profiles? Perhaps because surveillance is socially integrated and perhaps because it is just convenient to be on Facebook. But that doesn’t change the fact that surveillance can potentially be a threat to our human rights. It just means that we perceive surveillance as an indirect threat and that we are unlikely to react to it.

In the long term, what does this mean? Well, it seems like we will probably be more acceptive towards more authoritarian power, that we will be used to the idea of censoring our own thoughts and actions (in the fear of getting caught by the CCTV camera on the street or the spyware which may or may not be implanted in our laptop) and that ultimately, we will be less politically active and more reluctant to challenge the authority.

What’s particularly interesting though about surveillance today is that it is fueled and enabled through our freedom of speech and general Internet freedom. If we didn’t have any Internet freedom - or as much as we do - we would have disclosed less personal data and thus surveillance would probably have been more restricted. The more Internet freedom we have, the more personal data we will disclose on Facebook - and on all the ‘Facebooks’ of the world - and the more data will potentially be available to mine, analyse, share and generally incorporate in the surveillance regime. So in this sense, Internet freedom appears to be a type of prerequisite of surveillance, as contradictory and ironic as it may seem. No wonder why the Chinese government has gone the extra mile in creating the Chinese versions of Facebook and Twitter - it’s probably no coincidence.

While we may blame governments for establishing surveillance schemes, ISP and TSP operators for complying with governments’ license agreements which often mandate that they create backdoors for spying on us and security companies for creating the surveillance gear in the first place, in the end of the day, we are all equally a part of this mess. If we didn’t choose to hand over our personal data to begin with, none of the above would have been possible.

The real danger in the Digital Age is not necessarily surveillance per se, but our choice to voluntarily disclose our personal data.

For more details visit http://editors.cis-india.org/internet-governance/blog/why-facebook-is-more-dangerous-than-the-government-spying-on-you

Interview with Caspar Bowden - Privacy Advocate and former Chief Privacy Adviser at Microsoft

maria — 2013-11-06T08:16:05Z

Maria Xynou recently interviewed Caspar Bowden, an internationally renowned privacy advocate and former Chief Privacy Adviser at Microsoft. Read this exciting interview and gain an insight on India's UID and CMS schemes, on the export of surveillance technologies, on how we can protect our data in light of mass surveillance and much much more!

Caspar Bowden is an independent advocate for better Internet privacy technology and regulation. He is a specialist in data protection policy, privacy enhancing technology research, identity management and authentication. Until recently he was Chief Privacy Adviser for Microsoft, with particular focus on Europe and regions with horizontal privacy law.

From 1998-2002, he was the director of the Foundation for Information Policy Research (www.fipr.org) and was also an expert adviser to the UK Parliament for the passage of three bills concerning privacy, and was co-organizer of the influential Scrambling for Safety public conferences on UK encryption and surveillance policy. His previous career over two decades ranged from investment banking (proprietary trading risk-management for option arbitrage), to software engineering (graphics engines and cryptography), including work for Goldman Sachs, Microsoft Consulting Services, Acorn, Research Machines, and IBM.

The Centre for Internet and Society interviewed Caspar Bowden on the following questions:

1. Do you think India needs privacy legislation? Why / Why not?

Well I think it's essential for any modern democracy based on a constitution to now recognise a universal human right to privacy. This isn't something that would necessarily have occurred to the draft of constitutions before the era of mass electronic communications, but this is now how everyone manages their lives and maintains social relationships at a distance, and therefore there needs to be an entrenched right to privacy – including communications privacy – as part of the core of any modern state.

2. The majority of India's population lives below the line of poverty and barely has any Internet access. Is surveillance an elitist issue or should it concern the entire population in the country? Why / Why not?

Although the majority of people in India are still living in conditions of poverty and don't have access to the Internet or, in some cases, to any electronic communications, that's changing very rapidly. India has some of the highest growth rates in take up with both mobile phones and mobile Internet and so this is spreading very rapidly through all strata of society. It's becoming an essential tool for transacting with business and government, so it's going to be increasingly important to have a privacy law which guarantees rights equally, no matter what anyone's social station or situation. There's also, I think, a sense in which having a right to privacy based on individual rights is much preferable to some sort of communitarian approach to privacy, which has a certain philosophical following; but that model of privacy - that somehow, because of a community benefit, there should also be a sort of community sacrifice in individual rights to privacy - has a number of serious philosophical flaws which we can talk about.

3. "I'm not a terrorist and I have nothing to hide...and thus surveillance can't affect me personally." Please comment.

Well, it's hard to know where to begin. Almost everybody in fact has “something to hide”, if you consider all of the social relationships and the way in which you are living your life. It's just not true that there's anybody who literally has nothing to hide and in fact I think that it's rather a dangerous idea, in political culture, to think about imposing that on leaders and politicians. There's an increasing growth of the idea – now, probably coming from America- that political leaders (and even their staff - to get hired in the current White House) should open up their lives, even to the extent of requiring officials to give up their passwords to their social network accounts (presumably so that they can be vetted for sources of potential political embarrassment in their private life). This is a very bad idea because if we only elect leaders, and if we only employ bureaucrats, who do not accord any subjective value to privacy, then it means we will almost literally be electing (philosophical) zombies. And we can't expect our political leaders to respect our privacy rights, if we don't recognise that they have a right to privacy in their own lives also. The main problem with the “nothing to hide, so nothing to fear” mantra is that this is used as a rhetorical tool by authoritarian forces in government and society, who simply wish to take a more paternalistic and protective attitude. This reflects a disillusionment within the “deep state” about how democratic states should function.

Essentially, those who govern us are given a license through elections to exercise power with consent, but this entails no abrogation of a citizen's duty to question authority. Instead, that should be seen as a civic duty - providing the objections are reasonable. People actually know that there are certain things in their lives that they don't wish other people to know, but by indoctrinating the “nothing to hide” ideology, it inculcates a general tendency towards more conformism in society, by inhibiting critical voices.

4. Should people have the right to give up their right to privacy? Why / Why not?

In European data protection law there is an obscure provision which is particularly relevant to medical privacy, but almost never used in the area of so-called sensitive personal data, like political views or philosophical views. It is possible currently for European governments to legislate to override the ability of the individual to consent. So this might arise, for example, if a foreign company sets up a service to get people to consent to have their DNA analysed and taken into foreign databases, or generally where people might consent to a big foreign company analysing and capturing their medical records. I think there is a legitimate view that, as a matter of national policy, a government could decide that these activities were threatening to data sovereignty, or that was just bad public policy. For example, if a country has a deeply-rooted social contract that guarantees the ability to access medical care through a national health service, private sector actors could try to undermine that social-solidarity basis for universal provision of health care. So for those sorts of reasons I do think it's defensible for governments to have the ability in those sectors to say: “Yes, there are areas where people should not be able to consent to give up their privacy!”

But then going back to the previous answer, more generally, commercial privacy policies are now so complicated – well, they've always been complicated, but now are mind-blowingly devious as well - people have no real possibility of knowing what they're consenting to. For example, the secondary uses of data flows in social networks are almost incomprehensible, even for technologists at the forefront of research. The French Data Protection authorities are trying to penalize Google for replacing several very complicated privacy policies by one so-called unified policy, which says almost nothing at all. There's no possible way for people to give informed consent to this over-simplified policy, because it doesn't even tell anything useful to an expert. So again in these circumstances, it's right for a regulator to intercede to prevent unfair exploitation of the deceptive kind of “tick-box” consent. Lastly, it is not possible for EU citizens to waive or trade away their basic right to access (or delete) their own data in future, because this seems a reckless act and it cannot be foreseen when this right might become essential in some future circumstances. So in these three senses, I believe it is proper for legislation to be able to prevent the abuse of the concept of consent.

5. Do you agree with India's UID scheme? Why / Why not?

There is a valid debate about whether it's useful for a country to have a national identity system of some kind - and there's about three different ways that can be engineered technically. The first way is to centralise all data storage in a massive repository, accessed through remote terminal devices. The second way is a more decentralised approach with a number of different identity databases or systems which can interoperate (or “federate” with eachother), with technical and procedural rules to enforce privacy and security safeguards. In general it's probably a better idea to decentralise identity information, because then if there is a big disaster (or cyber-attack) or data loss, you haven't lost everything. The third way is what's called “user-centric identity management”, where the devices (smartphones or computers) citizens use to interact with the system keep the identity information in a totally decentralised way.

Now the obvious objection to that is: “Well, if the data is decentralised and it's an official system, how can we trust that the information in people's possession is authentic?”. Well, you can solve that with cryptography. You can put digital signatures on the data, to show that the data hasn't been altered since it was originally verified. And that's a totally solved problem. However, unfortunately, not very many policy makers understand that and so are easily persuaded that centralization is the most efficient and secure design – but that hasn't been true technically for twenty years. Over that time, cryptographers have refined the techniques (the alogithms can now run comfortably on smartphones) so that user-centric identity management is totally achievable, but policy makers have not generally understood that. But there is no technical reason a totally user-centric vision of identity architecture should not be realized. But still the UID appears to be one of the most centralised large systems ever conceived.

There are still questions I don't understand about its technical architecture. For example, just creating an identity number by itself doesn't guarantee security and it's a classic mistake to treat an identifier as an authenticator. In other words, to use an identifier or knowledge of an identifier - which could become public information, like the American social security number – to treat knowledge of that number as if it were a key to open up a system to give people access to their own private information is very dangerous. So it's not clear to me how the UID system is designed in that way. It seems that by just quoting back a number, in some circumstances this will be the key to open up the system, to reveal private information, and that is an innately insecure approach. There may be details of the system I don't understand, but I think it's open to criticism on those systemic grounds.

And then more fundamentally, you have to ask what's the purpose of that system in society. You can define a system with a limited number of purposes – which is the better thing to do – and then quite closely specify the legal conditions under which that identity information can be used. It's much more problematic, I think, to try and just say that “we'll be the universal identity system”, and then you just try and find applications for it later. A number of countries tried this approach, for example Belgium around 2000, and they expected that having created a platform for identity, that many applications would follow and tie into the system. This really didn't happen, for a number of social and technical reasons which critics of the design had predicted. I suppose I would have to say that the UID system is almost the anithesis of the way I think identity systems should be designed, which should be based on quite strong technical privacy protection mechanisms - using cryptography - and where, as far as possible, you actually leave the custody of the data with the individual.

Another objection to this user-centric approach is “back-up”: what happens when you lose the primary information and/or your device? Well, you can anticipate that. You can arrange for this information to be backed-up and recovered, but in such a way that the back-up is encrypted, and the recovered copy can easily be checked for authenticity using cryptography.

6. Should Indian citizens be concerned about the Central Monitoring System (CMS)? Why / Why not?

Well, the Central Monitoring System does seem to be an example of very large scale “strategic surveillance”, as it is normally called. Many western countries have had these for a long time, but normally only for international communications. Normally surveillance of domestic communications is done under a particular warrant, which can only be applied one investigation at a time. And it's not clear to me that that is the case with the Central Monitoring System. It seems that this may also be applicable to mass surveillance of communications inside India. Now we're seeing a big controversy in the U.S - particularly at the moment - about the extent to which their international strategic surveillance systems are also able to be used internally. What has happened in the U.S. seems rather deceptive; although the “shell” of the framework of individual protection of rights was left in place, there are actually now so many exemptions when you look in the detail, that an awful lot of Americans' domestic communications are being subjected to this strategic mass surveillance. That is unacceptable in a democracy.

There are reasons why, arguably, it's necessary to have some sort of strategic surveillance in international communications, but what Edward Snowden revealed to us is that in the past few years many countries – the UK, the U.S, and probably also Germany, France and Sweden – have constructed mass surveillance systems which knowingly intrude on domestic communications also. We are living through a transformation in surveillance power, in which the State is becoming more able to monitor and control the population secretively than ever before in history. And it's very worrying that all of these systems appear to have been constructed without the knowledge of Parliaments and without precise legislation. Very few people in government even seem to have understood the true mind-boggling breadth of this new generation of strategic surveillance. And no elections were fought on a manifesto asking “Do people want this or not?”. It's being justified under a counter-terrorism mantra, without very much democratic scrutiny at all. The long term effects of these systems on democracies are really uncharted territory.

We know that we're not in an Orwellian state, but the model is becoming more Kafkaesque. If one knows that this level of intensive and automated surveillance exists, then it has a chilling effect on society. Even if not very much is publicly known about these systems, there is still a background effect that makes people more conformist and less politically active, less prepared to challenge authority. And that's going to be bad for democracy in the medium term – not just the long term.

7. Should surveillance technologies be treated as traditional arms / weapons? If so, should export controls be applied to surveillance technologies? Why / Why not?

Surveillance technologies probably do need to be treated as weapons, but not necessarily as traditional weapons. One probably is going to have to devise new forms of export control, because tangible bombs and guns are physical goods – well, they're not “goods”, they're “bads” - that you can trace by tagging and labelling them, but many of the “new generation” of surveillance weapons are software. It's very difficult to control the proliferation of bits – just as it is with copyrighted material. And I remember when I was working on some of these issues thirteen years ago in the UK – during the so-called crypto wars – that the export of cryptographic software from many countries was prohibited. And there were big test cases about whether the source code of these programs was protected under the US First Amendment, which would prohibit such controls on software code. It was intensely ironic that in order to control the proliferation of cryptography in software, governments seemed to be contemplating the introduction of strategic surveillance systems to detect (among other things) when cryptographic software was being exported. In other words, the kind of surveillance systems which motivated the “cypherpunks” to proselytise cryptography, were being introduced (partly) with the perverse justification of preventing such proliferation of such cryptography!

In the case of the new, very sophisticated software monitoring devices (“Trojans”) which are being implanted into people's computers – yes, this has to be subject to the same sort of human rights controls that we would have applied to the exports of weapon systems to oppressive regimes. But it's quite difficult to know how to do that. You have to tie responsibility to the companies that are producing them, but a simple system of end-user licensing might not work. So we might actually need governments to be much more proactive than they have been in the past with traditional arms export regimes and actually do much more actively to try and follow control after export – whether these systems are only being used by the intended countries. As for the law enforcement agencies of democratic countries which are buying these technologies: the big question is whether law enforcement agencies are actually applying effective legal and operational supervision over the use of those systems. So, it's a bit of a mess! And the attempts that have been made so far to legislate this area I don't think are sufficient.

8. How can individuals protect their data (and themselves) from spyware, such as FinFisher?

In democratic countries, with good system of the rule of law and supervision of law enforcement authorities, there have been cases – notably in Germany – where it's turned out that the police using techniques, like FinFisher, have actually disregarded legal requirements from court cases laying down the proper procedures. So I don't think it's good enough to assume that if one was doing ordinary lawful political campaigning, that one would not be targeted by these weapons. So it's wise for activists and advocates to think about protecting themselves – of course, other professions as well who look after confidential information – because these techniques may also get into the hands of industrial spies, private detectives and generally by people who are not subject to even the theoretical constraints of law enforcement agencies.

After Edward Snowden's revelations, we understand that all our computer infrastructure is much more vulnerable – particularly to foreign and domestic intelligence agencies – than we ever imagined. So for example, I don't use Microsoft software anymore – I think that there are techniques which are now being sold to governments and available to governments for penetrating Microsoft platforms and probably other major commercial platforms as well. So, I've made the choice, personally, to use free software – GNU/Linux, in particular – and it still requires more skill for most people to use, but it is much much easier than even a few years ago. So I think it's probably wise for most people to try and invest a little time getting rid of proprietary software if they care at all about societal freedom and privacy. I understand that using the latest, greatest smartphone is cool, and the entertainment and convenience of Cloud and tablets – but people should not imagine that they can keep those platforms secure.

It might sound a bit primitive, but I think people should have to go back to the idea that if they really want confidential communications with their friends, or if they are involved with political work, they have to think about setting aside one machine - which they keep offline and just use essentially for editing and encrypting/decrypting material. Once they've encrypted their work on their “air gap” machine, as it's called, then they can put their encrypted emails on a USB stick and transfer them to their second machine which they use to connect online (I notice Bruce Schneier is just now recommending the same approach). Once the “air gap” machine has been set up and configured, you should not connect that to the network – and preferably, don't connect it to the network, ever! So if you follow those sorts of protocols, that's probably the best that is achievable today.

9. How would you advise young people working in the surveillance industry?

Young people should try and read a little bit into the ethics of surveillance and to understand their own ethical limits in what they want to do, working in that industry. And in some sense, I think it's a bit like contemplating a career in the arms industry. There are defensible uses of military weapons, but the companies that build these weapons are, at the end of the day, just corporations maximizing value for shareholders. And so, you need to take a really hard look at the company that you're working for or the area you want to work in and satisfy your own standard of ethics, and that what you're doing is not violating other people's human rights. I think that in the fantastically explosive growth of surveillance industries that we've seen over the past few years – and it's accelerating – the sort of technologies particularly being developed for electronic mass surveillance are fundamentally and ethically problematic. And I think that for a talented engineer, there are probably better things that he/she can do with his/her career.

For more details visit http://editors.cis-india.org/internet-governance/blog/interview-with-caspar-bowden-privacy-advocate

Spy Files 3: WikiLeaks Sheds More Light On The Global Surveillance Industry

maria — 2013-11-14T16:21:00Z

In this article, Maria Xynou looks at WikiLeaks' latest Spy Files and examines the legality of India's surveillance technologies, as well as their potential connection with India's Central Monitoring System (CMS) and implications on human rights.

Last month, WikiLeaks released “Spy Files 3”, a mass exposure of the global surveillance trade and industry. WikiLeaks first released the Spy Files in December 2011, which entail brochures, presentations, marketing videos and technical specifications on the global trade of surveillance technologies. Spy Files 3 supplements this with 294 additional documents from 92 global intelligence contractors.

So what do the latest Spy Files reveal about India?

When we think about India, the first issues that probably come to mind are poverty and corruption, while surveillance appears to be a more “Western” and elitist issue. However, while many other developing countries are excluded from WikiLeaks’ list of surveillance technology companies, India is once again on the list with some of the most controversial spyware.

ISS World Surveillance Trade Shows

The latest Spy Files include a brochure of the ISS World 2013 -the so-called “wiretapper’s ball”- which is the world’s largest surveillance trade show. This years ’ ISS World Asia will take place in Malaysia during the first week of December and law enforcement agencies from around the world will have another opportunity to view and purchase the latest surveillance tech. The leaked ISS World 2013 brochure entails a list of last years’ global attendees. According to the brochure, 53% of the attendees included law enforcement agencies and individuals from the defense, public safety and interior security sectors, 41% of the attendees were ISS vendors and technology integrators, while only 6% of the attendees were telecom operators and from the private enterprise. The brochure boasts that 4,635 individuals from 110 countries attended the ISS World trade shows last year and that the percentage of attendance is increasing.

The following table lists the Indian attendees at last years ’ ISS World:

Law Enforcement, Defense and Interior Security Attendees	Telecom Operators and Private Enterprises Attendees	ISS Vendors and Technology Integrators Attendees
Andhra Pradesh India Police	BT	AGC Networks
CBI Academy	Cogence Investment Bank	Aqsacom India
Government of India, Telecom Department	India Reliance Communications	ClearTrail Technologies
India Cabinet Secretariat	Span Telecom Pvt. Ldt.	Foundation Technologies
India Centre for Development of Telematics (C-DOT)		Kommlabs
India Chandigarh Police		Paladion Networks
India Defence Agency		Polaris Wireless
India General Police		Polixel Security Systems
India Intelligence Department		Pyramid Cyber Security
India National Institute of Criminology		Schleicher Group
India office LOKAYUKTA NCT DELHI		Span Technologies
India Police Department, A.P.		TATA India
India Tamil Nadu Police Department		Tata Consultancy Services
Indian Police Service, Vigilance		Telecommunications India
Indian Telecommunications Authority		Vehere Interactive
NTRO India
SAIC Indian Tamil Nadu Police

17 4 15

According to the above table - which is based on data from the WikiLeaks ’ ISS World 2013 brochure- the majority of Indian attendees at last years’ ISS World were from the law enforcement, defense and interior security sectors. 15 Indian companies exhibited and sold their surveillance technologies to law enforcement agencies from around the world and it is notable that India’s popular ISP provider, Reliance Communications, attended the trade show too.

In addition to the ISS World 2013 brochure, the Spy Files 3 entail a detailed brochure of a major Indian surveillance technology company: ClearTrail Technologies.

ClearTrail Technologies

ClearTrail Technologies is an Indian company based in Indore. The document titled “Internet Monitoring Suite ” from ClearTrail Technologies boasts about the company’s mass monitoring, deep packet inspection, COMINT, SIGINT, tactical Internet monitoring, network recording and lawful interception technologies. ClearTrail’s Internet Monitoring Suite includes the following products:

1. ComTrail: Mass Monitoring of IP and Voice Networks

ComTrail is an integrated product suite for centralized interception and monitoring of voice and data networks. It is equipped with an advanced analysis engine for pro-active analysis of thousands of connections and is integrated with various tools, such as Link Analysis, Voice Recognition and Target Location.

ComTrail is deployed within a service provider network and its monitoring function correlates voice and data intercepts across diverse networks to provide a comprehensive intelligence picture. ComTrail supports the capture, record and replay of a variety of Voice and IP communications in pretty much any type of communication, including - but not limited to- Gmail, Yahoo, Hotmail, BlackBerry, ICQ and GSM voice calls.

Additionally, ComTrail intercepts data from any type of network -whether Wireless, packet data, Wire line or VoIP networks- and can decode hundreds of protocols and P2P applications, including HTTP, Instant Messengers, Web-mails, VoIP Calls and MMS.

In short, ComTrail’s key features include the following:

- Equipped to handle millions of communications per day intercepted over high speed STM & Ethernet Links

- Doubles up as Targeted Monitoring System

- On demand data retention, capacity exceeding several years

- Instant Analysis across thousands of Terabytes

- Correlates Identities across multiple networks

- Speaker Recognition and Target Location

2. xTrail: Targeted IP Monitoring

xTrail is a solution for interception, decoding and analysis of high speed data traffic over IP networks and independently monitors ISPs/GPRS and 3G networks. xTrail has been designed in such a way that it can be deployed within minutes and enables law enforcement agencies to intercept and monitor targeted communications without degrading the service quality of the IP network. This product is capable of intercepting all types of networks -including wireline, wireless, cable, VoIP and VSAT networks- and acts as a black box for “record and replay” targeted Internet communications.

Interestingly enough, xTrail can filter based on a “pure keyword”, a URL/Domain with a keyword, an IP address, a mobile number or even with just a user identity, such as an email ID, chat ID or VoIP ID. Furthermore, xTrail can be integrated with link analysis tools and can export data in a digital format which can allegedly be presented in court as evidence.

In short, xTrail’s key features include the following:

- Pure passive probe

- Designed for rapid field operations at ISP/GPRS/Wi-Max/VSAT Network Gateways

- Stand-alone solution for interception, decoding and analysis of multi Gigabit IP traffic

- Portable trolley based for simplified logistics, can easily be deployed and removed from any network location

- Huge data retention, rich analysis interface and tamper proof court evidence

- Easily integrates with any existing centralized monitoring system for extended coverage

3. QuickTrail: Tactical Wi-Fi Monitoring

Some of the biggest IP monitoring challenges that law enforcement agencies face include cases when targets operate from public Internet networks and/or use encryption.

QuickTrail is a device which is designed to gather intelligence from public Internet networks, when a target is operating from a cyber cafe, a hotel, a university campus or a free Wi-Fi zone. In particular, QuickTrail is equipped with multiple monitoring tools and techniques that can help intercept almost any wired, Wi-Fi or hybrid Internet network so that a target communication can be monitored. QuickTrail can be deployed within fractions of seconds to intercept, reconstruct, replay and analyze email, chat, VoIP and other Internet activities of a target. This device supports real time monitoring and wiretapping of Ethernet LANs.

According to ClearTrail’s brochure, QuickTrail is a “all-in-one” device which can intercept secured communications, know passwords with c-Jack attack, alert on activities of a target, support active and passive interception of Wi-Fi and wired LAN and capture, reconstruct and replay. It is noteworthy that QuickTrail can identify a target machine on the basis of an IP address, MAC ID, machine name, activity status and several other parameters. In addition, QuickTrail supports protocol decoding, including HTTP, SMTP, POP3 and HTTPS. This device also enables the remote and central management of field operations at geographically different locations.

In short, QuickTrail’s key features include the following:

- Conveniently housed in a laptop computer

- Intercepts Wi-Fi and wired LANs in five different ways

- Breaks WEP, WPA/WPA2 to rip-off secured Wi-Fi networks

- Deploys spyware into a target’s machine

- Monitor’s Gmail, Yahoo and all other HTTPS-based communications

- Reconstructs webmails, chats, VoIP calls, news groups and social networks

4. mTrail: Off-The-Air Interception

mTrail offers active and passive ‘off-the-air’ interception of GSM 900/1800/1900 Mhz phone calls and data to meet law enforcement surveillance and investigation requirements. The mTrail passive interception system works in the stealth mode so that there is no dependence on the network operator and so that the target is unaware of the interception of its communications.

The mTrail system has the capability to scale from interception of 2 channels (carrier frequencies) to 32 channels. mTrail can be deployed either in a mobile or fixed mode: in the mobile mode the system is able to fit into a briefcase, while in the fixed mode the system fits in a rack-mount industrial grade chassis.

Target location identification is supported by using signal strength, target numbers, such as IMSI, TIMSI, IMEI or MSI SDN, which makes it possible to listen to the conversation on so-called “lawfully intercepted” calls in near real-time, as well as to store all calls. Additionally, mTrail supports the interception of targeted calls from pre-defined suspect lists and the monitoring of SMS and protocol information.

In short, mTrail’s key features include the following:

- Designed for passive interception of GSM communications

- Intercepts Voice and SMS “off-the-air”

- Detects the location of the target

- Can be deployed as a fixed unit or mounted in a surveillance van

- No support required from GSM operator

5. Astra: Remote Monitoring and Infection framework

“Astra ” is a remote monitoring and infection framework which incorporates both conventional and proprietary infection methods to ensure bot delivery to the targeted devices. It also offers a varied choice in handling the behavior of bots and ensuring non-traceable payload delivery to the controller.

The conventional methods of infection include physical access to a targeted device by using exposed interfaces, such as a CD-ROM, DVD and USB ports, as well as the use of social media engineering techniques. However, Astra also supports bot deployment without requiring any physical access to the target device.

In particular, Astra can push bot to any targeted machine sharing the same LAN (wired, wi-fi or hybrid). The SEED is a generic bot which can identify a target’s location, log keystrokes, capture screen-shots, capture Mic, listen to Skype calls, capture webcams and search the target’s browsing history. Additionally, the SEED bot can also be remotely activated, deactivated or terminated, as and when required. Astra allegedly provides an un-traceable reporting mechanism that operates without using any proxies, which overrules the possibility of getting traced by the target.

Astra’s key features include the following:

- Proactive intelligence gathering

- End-to-end remote infection and monitoring framework

- Follow the target, beat encryption, listen to in-room conversations, capture keystrokes and screen shots

- Designed for centralized management of thousands of targets

- A wide range of deployment mechanisms to optimize success ration

- Non-traceable, non-detectable delivery mechanism

- Intrusive yet stealthy

- Easy interface for handling most complex tasks

- Successfully tested over the current top 10 anti-virus available in the market

- No third party dependencies

- Free from any back-door intervention

ClearTrail Technologies argue that they meet lawful interception regulatory requirements across the globe. In particular, they claim that their products are compliant with ETSI and CALEA regulations and that they are efficient to cater to region specific requirements as well.

The latest Spy Files also include data on foreign surveillance technology companies operating in India, such as Telesoft Technologies, AGT International and Verint Systems. In particular, Verint Systems has its headquarters in New York and offices all around the world, including Bangalore in India. Founded in 1994 and run by Dan Bodner, Verint Systems produces a wide range of surveillance technologies, including the following:

- Impact 360 Speech Analytics

- Impact 360 Text Analytics

- Nextiva Video Management Software (VMS)

- Nextiva Physical Security Information Management (PSIM)

- Nextiva Network Video Recorders (NVRs)

- Nextiva Video Business Intelligence (VBI)

- Nextiva Surveillance Analytics

- Nextiva IP cameras

- CYBERVISION Network Security

- ENGAGE suite

- FOCAL-INFO (FOCAL-COLLECT & FOCAL-ANALYTICS)

- RELIANT

- STAR-GATE

- VANTAGE

While Verint Systems claims to be in compliance with ETSI, CALEA and other worldwide lawful interception and standards and regulations, it remains unclear whether such products successfully help law enforcement agencies in tackling crime and terrorism, without violating individuals’ right to privacy and other human rights. After all, Verint Systems has participated in ISS World Trade shows which exhibit some of the most controversial spyware in the world, used to target individuals and for mass surveillance.

And what do the latest Spy Files mean for India?

Why is it even important to look at the latest Spy Files? Well, for starters, they reveal data about which Indian law enforcement agencies are interested in surveillance and which companies are interested in selling and/or buying the latest spy gear. And why is any of this important? I can think of three main reasons:

1. The Central Monitoring System (CMS)

2. Is any of this surveillance even legal in India?

3. Can such surveillance result in the violation of human rights?

Spy Files 3...and the Central Monitoring System (CMS)

Following the Mumbai 2008 terrorist attacks, the Telecom Enforcement, Resource and Monitoring (TREM) cells and the Centre for Development of Telematics (C-DOT) started preparing the Central Monitoring System (CMS ). As of April 2013, this project is being manned by the Intelligence Bureau, while agencies which are planned to have access to it include the Research & Analysis Wing (RAW) and the Central Bureau of Investigation (CBI). ISP and Telecom operators are required to install the gear which enables law enforcement agencies to carry out the Central Monitoring System under the Unified Access Services (UAS ) License Agreement.

The Central Monitoring System aims at centrally monitoring all telecommunications and Internet communications in India and its estimated cost is Rs . 4 billion. In addition to equipping government agencies with Direct Electronic Provisioning, filters and alerts on the target numbers, the CMS will also enable Call Data Records (CDR) analysis and data mining to identify personal information of the target numbers. The CMS supplements regional Internet Monitoring Systems , such as that of Assam, by providing a nationwide monitoring of telecommunications and Internet communications, supposedly to assist law enforcement agencies in tackling crime and terrorism.

However, data monitored and collected through the CMS will be stored in a centralised database, which could potentially increase the probability of centralized cyber attacks and thus increase, rather than reduce, threats to national security. Furthermore, some basic rules of statistics indicate that the bigger the amount of data , the bigger the probability of an error in matching profiles, which could potentially result in innocent people being charged with crimes they did not commit. And most importantly: the CMS currently lacks adequate legal oversight, which means that it remains unclear how monitored data will be used. The UAS License Agreement regarding the CMS mandates mass surveillance by requiring ISPs and Telecom operators to enable the monitoring and interception of communications. However, targeted and mass surveillance through the CMS not only raises serious questions around its legality, but also creates the potential for abuse of the right to privacy and other human rights.

Interestingly enough, Indian law enforcement agencies which attended last years ’ ISS World trade shows are linked to the Central Monitoring System. In particular, last years’ law enforcement, defense and interior security attendees include the Centre for Development of Telematics (C-DOT) and the Department of Telecommunications, both of which prepared the Central Monitoring System. The list of attendees also includes India’s Intelligence Bureau, which is manning the CMS, as well as the agencies which will have access to the CMS: the Central Bureau of Investigation (CBI), the Research and Analysis Wing (RAW), the National Technical Research Organization (NTRO) and various other state police departments and intelligence agencies.

Furthermore, Spy Files 3 entail a list of last years ’ ISS World security company attendees, which includes several Indian companies. Again, interestingly enough, many of these companies may potentially be aiding law enforcement with the technology to carry out the Central Monitoring System. ClearTrail Technologies, in particular, provides solutions for targeted and mass monitoring of IP and voice networks, as well as remote monitoring and infection frameworks - all of which would potentially be perfect to aid the Central Monitoring System.

In fact, ClearTrail states in its brochure that its ComTrail product is equipped to handle millions of communications per day, while its xTrail product can easily be integrated with any existing centralised monitoring system for extended coverage. And if that’s not enough, ClearTrail’s “Astra ” is designed for the centralized management of thousands of targets. While there may not be any concrete proof that ClearTrail is indeed aiding the Centralized Monitoring System, the facts speak for themselves: ClearTrail is an Indian company which sells target and mass monitoring products to law enforcement agencies. The Centralized Monitoring System is currently being implemented. What are the odds that ClearTrail is not equipping the CMS? And what are the odds that such technology is not being used for other mass electronic surveillance programmes, such as the Lawful Intercept and Monitoring (LIM)?

Spy Files 3...and the legality of India’s surveillance technologies

ClearTrail Technologies’ brochure -the only leaked document on Indian surveillance technology by the latest Spy Files- states that the company complies with ETSI and CALEA regulations. While it’s clear that the company complies with U.S. and European regulations on the interception of communications to attract more customers in the international market, such regulations don’t really apply within India, which is part of ClearTrail’s market. Notably enough, ClearTrail does not mention any compliance with Indian regulations in its brochure. So let’s have a look at them.

India has five laws which regulate surveillance:

1. The Indian Telegraph Act, 1885

2. The Indian Post Office Act, 1898

3. The Indian Wireless Telegraphy Act, 1933

4. The Code of Criminal Procedure (CrPc ), 1973: Section 91

5. The Information Technology (Amendment ) Act, 2008

The Indian Post Offices Act does not cover electronic communications and the Indian Wireless Telegraphy Act lacks procedures which would determine if surveillance should be targeted or not. Neither the Indian Telegraph Act nor the Information Technology (Amendment ) Act cover mass surveillance, but are both limited to targeted surveillance. Moreover, targeted interception in India according to these laws requires case-by-case authorization by either the home secretary or the secretary department of information technology. In other words, unauthorized, limitless, mass surveillance is not technically permitted by law in India.

The Indian Telegraph Act mandates that the interception of communications can only be carried out on account of a public emergency or for public safety. However, in 2008, the Information Technology Act copied most of the interception provisions of the Indian Telegraph Act, but removed the preconditions of public emergency or public safety, and instead expanded the power of the government to order interception for the “investigation of any offense”.

The interception of Internet communications is mainly covered by the 2009 Rules under the Information Technology Act 2008 and Sections 69 and 69 B are particularly noteworthy. According to these Sections, an Intelligence Bureau officer who leaked national secrets may be imprisoned for up to three years, while Section 69 not only allows for the interception of any information transmitted through a computer resource, but also requires that users disclose their encryption keys upon request or face a jail sentence of up to seven years.

While these laws allow for the interception of communications and can be viewed as widely controversial, they do not technically permit the mass surveillance of communications. In other words, ClearTrail’s products, such as ComTrail, which enable the mass interception of IP networks, lack legal backing. However, the Unified Access Services (UAS ) License Agreement regarding the Central Monitoring System mandates mass surveillance and requires ISP and Telecom operators to comply.

Through the licenses of the Department of Telecommunications, Internet service providers, cellular providers and telecoms are required to provide the Government of India direct access to all communications data and content even without a warrant, which is not permitted under the laws on interception. These licenses also require cellular providers to have ‘bulk encryption’ of less than 40 bits, which means that potentially any person can use off-the-air interception to monitor phone calls. However, such licenses do not regulate the capture of signal strength, target numbers like IMSI, TIMSI, IMEI or MSI SDN, which can be captured through ClearTrail’s mTrail product.

More importantly, following allegations that the National Technical Research Organization (NTRO) had been using off-the-air interception equipment to snoop on politicians in 2011, the Home Ministry issued a directive to ban the possession or use of all off-the-air phone interception gear. As a result, the Indian Government asked the Customs Department to provide an inventory of all all such equipment imported over a ten year period, and it was uncovered that as many as 73,000 pieces of equipment had been imported. Since, the Home Ministry has informed the heads of law enforcement agencies that there has been a compete ban on use of such equipment and that all those who possess such equipment and fail to inform the Government will face prosecution and imprisonment. In short, ClearTrail's product, mTrail, which undertakes off-the-air phone monitoring is illegal and Indian law enforcement agencies are prohibited from using it.

ClearTrail’s “Astra ” product is capable of remote infection and monitoring, which can push bot to any targeted machine sharing the same LAN. While India’s ISP and telecommunications licenses generally provide some regulations, they appear to be inadequate in regulating specific surveillance technologies which have the capability to target machines and remotely monitor them. Such licenses mandate mass surveillance, but legally, wireless communications are completely unregulated, which raises the question of whether the interception of public Internet networks is allowed. In other words, it is not clear if ClearTrail’s QuickTrail is technically legal or not. The UAS License agreement mandates mass surveillance, and while the law does not prohibit it, it does not mandate mass surveillance either. This remains a grey area.

The issue of data retention arises from ClearTrail ’s leaked brochure. In particular, ClearTrail states in its brochure that ComTrail - which undertakes mass monitoring of IP and Voice networks - retains data upon request, with a capacity that exceeds several years. xTrail - for targeted IP monitoring - has the ability to retain huge volumes of data which can potentially be used as proof in court. However, India currently lacks privacy legislation which would regulate data retention, which means that data collected by ClearTrail could potentially be stored indefinitely.

Section 7 of the Information Technology (Amendment) Act, 2008, deals with the retention of electronic records. However, this section does not state a particular data retention period, nor who will have authorized access to data during its retention, who can authorize such access, whether retained data can be shared with third parties and, if so, under what conditions. Section 7 of the Information Technology (Amendment) Act, 2008, appears to be incredibly vague and to fail to regulate data retention adequately.

Data retention requirements for service providers are included in the ISP and UASL licenses and, while they clarify the type of data they retain, they do not specify adequate conditions for data retention. Due to the lack of data protection legislation in India, it remains unclear how long data collected by companies, such as ClearTrail, would be stored for, as well as who would have authorized access to such data during its retention period, whether such data would be shared with third parties and disclosed and if so, under what conditions.

India currently lacks specific regulations for the use of various types of technologies, which makes it unclear whether ClearTrail ’s spy products are technically legal or not. It is clear that ClearTrail’s mass interception products, such as ComTrail, are not legalized - since Indian laws allow for targeted interception- but they are mandated through the UAS License agreement regarding the Central Monitoring System.

In short, the legality of ClearTrail’s surveillance technologies remains ambiguous. While India’s ISP and telecom licenses and the UAS License Agreement mandate mass surveillance, the laws - particularly the 2009 Information Technology Rules- mandate targeted surveillance and remain silent on the issue of mass surveillance. Technically, this does not constitute mass surveillance legal or illegal, but rather a grey area. Furthermore, while India ’s Telegraph Act, Information Technology Act and 2009 Rules allow for the interception, monitoring and decryption of communications and surveillance in general, they do not explicitly regulate the various types of surveillance technologies, but rather attempt to “legalize” them through the blanket term of surveillance.

One thing is clear: India’s license agreements ensure that all ISPs and telecom operators are a part of the surveillance regime. The lack of regulations for India’s surveillance technologies appear to create a grey zone for the expansion of mass surveillance in the country. According to Saikat Datta, an investigative journalist, a senior privacy telecom official stated:

“Do you really think a private telecom company can stand up to the government or any intelligence agency and cite law if they want to tap someone’s phone?”

Spy Files 3...and human rights in India

The facts speak for themselves. The latest Spy Files confirm that the same agencies involved in the development of the Central Monitoring System (CMS) are also interested in the latest surveillance technology sold in the global market. Spy Files 3 also provide data on one of India’s largest surveillance technology companies, ClearTrail, which sells a wide range of surveillance technologies to law enforcement agencies around the world. And Spy Files 3 show us exactly what these technologies can do.

In particular, ClearTrail’s ComTrail provides mass monitoring of IP and voice networks, which means that law enforcement agencies using it are capable of intercepting millions of communications every day through Gmail, Yahoo, Hotmail and others, of correlating our identities across networks and of targeting our location. xTrail enables law enforcement agencies to monitor us based on our “harmless” metadata, such as our IP address, our mobile number and our email ID. Think our data is secure when using the Internet through a cyber cafe? Well QuickTrail proves us wrong, as it’s able to assist law enforcement agencies in monitoring and intercepting our communications even when we are using public Internet networks.

And indeed, carrying a mobile phone is like carrying a GPS device, especially since mTrail provides law enforcement with off-the-air interception of mobile communications. Not only can mTrail target our location, listen to our calls and store our data, but it can also undertake passive off-the-air interception and monitor our voice, SMS and protocol information. Interestingly enough, mTrail also intercepts targeted calls from a predefined suspect list. The questions though which arise are: who is a suspect? How do we even know if we are suspects? In the age of the War on Terror, potentially anyone could be a suspect and thus potentially anyone’s mobile communications could be intercepted. After all, mass surveillance dictates that we are all suspicious until proven innocent .

And if anyone can potentially be a suspect, then potentially anyone can be remotely infected and monitored by Astra. Having physical access to a targeted device is a conventional surveillance mean of the past. Today, Astra can remotely push bot to our laptops and listen to our Skype calls, capture our Webcams, search our browsing history, identify our location and much more. And why is any of this concerning? Because contrary to mainstream belief, we should all have something to hide !

Privacy protects us from abuse from those in power and safeguards our individuality and autonomy as human beings. If we are opposed to the idea of the police searching our home without a search warrant, we should be opposed to the idea of our indiscriminate mass surveillance. After all, mass surveillance - especially the type undertaken by ClearTrail ’s products - can potentially result in the access, sharing, disclosure and retention of data much more valuable than that acquired by the police searching our home. Our credit card details, our photos, our acquaintances, our personal thoughts and opinions, and other sensitive personal information can usually be found in our laptops, which potentially can constitute much more incriminating information than that found in our homes.

And most importantly: even if we think that we have nothing to hide, it’s really not up to us to decide: it’s up to data analysts. While we may think that our data is “harmless”, a data analyst linking our data to various other people and search activities we have undertaken might indicate otherwise. Five years ago, a UK student studying Islamic terrorism for his Masters dissertation was detained for six days . The student may not have been a terrorist, but his data said this: “Young, male, Muslim... who is downloading Al-Qaeda’s training material” - and that was enough for him to get detained. Clearly, the data analysts mining his online activity did not care about the fact that the only reason why he was downloading Al-Qaeda material was for his Masters dissertation. The fact that he was a male Muslim downloading terrorist material was incriminating enough.

This incident reveals several concerning points: The first is that he was clearly already under surveillance, prior to downloading Al-Qaeda’s material. However, given that he did not have a criminal record and was “just a Masters student in the UK”, there does not appear to be any probable cause for his surveillance in the first place. Clearly he was on some suspect list on the premise that he is male and Muslim - which is a discriminative approach. The second point is that after this incident, it is likely that some male Muslims may be more cautious about their online activity - with the fear of being on some suspect list and eventually being prosecuted because their data shows that “they’re a terrorist”. Thus, mass surveillance today appears to also have implications on freedom of expression. The third point is that this incident reveals the extent of mass surveillance, since even a document downloaded by a Masters student is being monitored.

This case proves that innocent people can potentially be under surveillance and prosecuted, as a result of mass, indiscriminate surveillance. Anyone can potentially be a suspect today, and maybe for the wrong reasons. It does not matter if we think our data is “harmless”, but what matters is who is looking at our data, when and why. Every bit of data potentially hides several other bits of information which we are not aware of, but which will be revealed within a data analysis. We should always “have something to hide ”, as that is the only way to protect us from abuse by those in power.

In the contemporary surveillance state, we are all suspects and mass surveillance technologies, such as the ones sold by ClearTrail, can potentially pose major threats to our right to privacy, freedom of expression and other human rights. And probably the main reason for this is because surveillance technologies in India legally fall in a grey area. Thus, it is recommended that law enforcement agencies in India regulate the various types of surveillance technologies in compliance with the International Principles on Communications Surveillance and Human Rights.

Spy Files 3 show us why our human rights are at peril and why we should fight for our right to be free from suspicion.

This article was cross-posted in Medianama on 6th November 2013.

For more details visit http://editors.cis-india.org/internet-governance/blog/spy-files-three

Interview with Dr. Alexander Dix - Berlin Data Protection and Freedom of Information Commissioner

maria — 2013-11-06T09:29:32Z

Maria Xynou recently interviewed Berlin's Data Protection and Freedom of Information Commissioner: Dr. Alexander Dix. View this interview and gain an insight on recommendations for better data protection in India!

Dr. Alexander Dix has been Berlin's Data Protection and Freedom of Information Commissioner since June 2005. He has more than 26 years of practical experience in German data protection authorities and previously served as Commissioner for the state of Bradenburg for seven years.

Dr. Dix is a specialist in telecommunications and media and has dealt with a number of issues regarding the cross-border protection of citizen’s privacy. He chairs the International Working Group on Data Protection in Telecommunications (“Berlin Group”) and is a member of the Article 29 Working Party of European Data Protection Supervisory Authorities. In this Working Party he represents the Data Protection Authorities of the 16 German States (Länder).

A native of Bad Homburg, Hessen, Dr. Alexander Dix graduated from Hamburg University with a degree in law in 1975. He received a Master of Laws degree from the London School of Economics and Political Science in 1976 and a Doctorate in law from Hamburg University in 1984. He has published extensively on issues of data protection and freedom of information. Inter alia he is a co-editor of the German Yearbook on Freedom of Information and Information Law.

The Centre for Internet and Society interviewed Dr. Alexander Dix on the following questions:

What activities and functions does the Berlin data commissioner's office undertake?
What powers does the Berlin data commissioner's office have? In your opinion, are these sufficient? Which powers have been most useful? If there is a lack, what would you feel is needed?
How is the office of the Berlin Data Protection Commissioner funded?
What is the organisational structure at the Office of the Berlin Data Protection Commissioner and the responsibilities of the key executives?
If India creates a Privacy Commissioner, what structure/framework would you suggest for the office?
What challenges has your office faced?
What is the most common type of privacy violation that your office is faced with?
Does your office differ from other EU data protection commissioner offices?
How do you think data should be regulated in India?
Do you support the idea of co-regulation or self-regulation?
How can India protect its citizens' data when it is stored in foreign servers?

VIDEO

For more details visit http://editors.cis-india.org/internet-governance/blog/interview-with-berlin-data-protection-commissioner

Interview with the Tactical Technology Collective on Privacy and Surveillance

maria — 2013-10-18T09:56:16Z

The Centre for Internet and Society recently interviewed Anne Roth from the Tactical Technology Collective in Berlin. View this interview and gain an insight on why we should all "have something to hide"!

For all those of you who haven't heard of the Tactical Technology Collective, it's a Berlin and Bangalore-based non-profit organisation which aims to advance the skills, tools and techniques of rights advocates, empowering them to use information and communications to help marginalised communities understand and effect progressive social, environmental and political change.

Tactical Tech's Privacy & Expression programme builds the digital security awareness and capacity of human rights defenders, independent journalists, anti-corruption advocates and activists. The programme's activities range from awareness-raising comic films aimed at audiences new to digital security issues, to direct training and materials for high-risk defenders working in some of the world's most repressive environments.

Anne Roth works with Tactical Tech on the Privacy & Expression programme as a researcher and editor. Anne holds a degree in political science from the Free University of Berlin. She cofounded one of the first interactive media activist websites, Indymedia, in Germany in 2001 and has been involved with media activism and various forms of activist online media ever since. She has worked as a web editor and translator in the past. Since 2007 she has written a blog that covers privacy, surveillance, media, net politics and feminist issues.

The Centre for Internet and Society interviewed Anne Roth on the following questions:

How do you define privacy?
Can privacy and freedom of expression co-exist? Why/ Why not?
What is the balance between Internet freedom and surveillance?
According to research, most people worldwide care about their online privacy – yet they give up most of it through the use of social networking sites and other online services. Why, in your opinion, does this occur and what are the potential implications?
Should people have the right to give up their right to privacy? Why/ Why not?
What implications on human rights can mass surveillance potentially have?
“I'm not a terrorist and I have nothing to hide...and thus surveillance can't affect me personally”. Please comment.
Do we have Internet freedom?

VIDEO

For more details visit http://editors.cis-india.org/internet-governance/blog/interview-with-the-tactical-technology-collective

Interview with Bruce Schneier - Internationally Renowned Security Technologist

maria — 2013-10-17T08:54:32Z

Maria Xynou recently interviewed Bruce Schneier on privacy and surveillance. View this interview and gain an insight on why we should all "have something to hide"!

Bruce Schneier is an internationally renowned security technologist, called a "security guru" by The Economist.

He is the author of 12 books -- including Liars and Outliers: Enabling the Trust Society Needs to Survive -- as well as hundreds of articles, essays, and academic papers. His influential newsletter "Crypto-Gram" and his blog "Schneier on Security" are read by over 250,000 people. He has testified before Congress, is a frequent guest on television and radio, has served on several government committees, and is regularly quoted in the press.

Schneier is a fellow at the Berkman Center for Internet and Society at Harvard Law School, a program fellow at the New America Foundation's Open Technology Institute, a board member of the Electronic Frontier Foundation, an Advisory Board Member of the Electronic Privacy Information Center, and the Security Futurologist for BT -- formerly British Telecom.

The Centre for Internet and Society (CIS) interviewed Bruce Schneier on the following questions:

Do you think India needs privacy legislation? Why/ Why not?
The majoity of India's population lives below the line of poverty and barely has any Internet access. Is surveillance an elitist issue or should it concern the entire population in the country? Why/ Why not?
“I'm not a terrorist and I have nothing to hide...and thus surveillance can't affect me personally.” Please comment.
Can free speech and privacy co-exist? What is the balance between privacy and freedom of expression?
Should people have the right to give up their right to privacy? Why/ Why not?
Should surveillance technologies be treated as traditional arms/weapons? Why/ Why not?
How can individuals protect their data (and themselves) from spyware, such as FinFisher?
How would you advise young people working in the surveillance industry?

VIDEO

For more details visit http://editors.cis-india.org/internet-governance/blog/interview-with-bruce-schneier

Interview with Big Brother Watch on Privacy and Surveillance

maria — 2013-10-15T14:24:27Z

Maria Xynou interviewed Emma Carr, the Deputy Director of Big Brother Watch, on privacy and surveillance. View this interview and gain an insight on why we should all "have something to hide"!

For all those of you who haven't heard of Big Brother Watch, it's a London-based campaign group which was founded in 2009 to protect individual privacy and defend civil liberties.

Big Brother Watch was set up to challenge policies that threaten our privacy, our freedoms and our civil liberties, and to expose the true scale of the surveillance state. The campaign group has produced unique research exposing the erosion of civil liberties in the UK, looking at the dramatic expansion of surveillance powers, the growth of the database state and the misuse of personal information. Big Brother Watch campaigns to give individuals more control over their personal data, and hold to account those who fail to respect our privacy, whether private companies, government departments or local authorities.

Emma Carr joined Big Brother Watch as Deputy Director in February 2012 and has since been regularly quoted in the UK press. The Centre for Internet and Society interviewed Emma Carr on the following questions:

How do you define privacy?
Can privacy and freedom of expression co-exist? Why/Why not?
What is the balance between Internet freedom and surveillance?
According to your research, most people worldwide care about their online privacy – yet they give up most of it through the use of social networking sites and other online services. Why, in your opinion, does this occur and what are the potential implications?
Should people have the right to give up their right to privacy? Why/Why not?
What implications on human rights can mass surveillance potentially have?
“I'm not a terrorist and I have nothing to hide...and thus surveillance can't affect me personally.” Please comment.
Do we have Internet freedom?

VIDEO

For more details visit http://editors.cis-india.org/internet-governance/blog/interview-with-big-brother-watch-on-privacy-and-surveillance

The India Privacy Monitor Map

maria — 2013-10-09T16:26:14Z

The Centre for Internet and Society has started the first Privacy Watch in India! Check out our map which includes data on the UID, NPR and CCTNS schemes, as well as on the installation of CCTV cameras and the use of drones throughout the country.

In a country of twenty-eight diverse states and seven union territories, it remained unclear to what extent surveillance, biometric and other privacy-intrusive schemes are being implemented. We are trying to make up for this by mapping out data in every single state in India on the UID, CCTNS and NPR schemes, as well as on the installation of CCTV cameras and the use of Unmanned Aerial Vehicles (UAVs), otherwise known as drones.

In particular, the map in its current format includes data on the following:

UID: The Unique Identification Number (UID), also known as AADHAAR, is a 12-digit unique identification number which the Unique Identification Authority of India (UIDAI) is currently issuing for all residents in India (on a voluntary basis). Each UID is stored in a centralised database and linked to the basic demographic and biometric information of each individual. The UIDAI and AADHAAR currently lack legal backing.

NPR: Under the National Population Register (NPR), the demographic data of all residents in India is collected on a mandatory basis. The Unique Identification Authority of India (UIDAI) supplements the NPR with the collection of biometric data and the issue of the AADHAAR number.

CCTV: Closed-circuit television cameras which can produce images or recordings for surveillance purposes.

UAV: Unmanned Aerial Vehicles (UAVs), otherwise known as drones, are aircrafts without a human pilot on board. The flight of a UAV is controlled either autonomously by computers in the vehicle or under the remote control of a pilot on the ground or in another vehicle. UAVs are used for surveillance purposes.

CCTNS: The Crime and Criminal Tracking Networks and Systems (CCTNS) is a nationwide networking infrastructure for enhancing efficiency and effectiveness of policing and sharing data among 14,000 police stations across India.

Our India Privacy Monitor Map can be viewed through the following link: http://cis-india.org/cisprivacymonitor

This map is part of on-going research and will hopefully expand to include other schemes and projects which are potentially privacy-intrusive. We encourage all feedback and additional data!

For more details visit http://editors.cis-india.org/internet-governance/blog/india-privacy-monitor-map

FinFisher in India and the Myth of Harmless Metadata

maria — 2013-08-13T11:30:15Z

In this article, Maria Xynou argues that metadata is anything but harmless, especially since FinFisher — one of the world's most controversial types of spyware — uses metadata to target individuals.

In light of PRISM, the Central Monitoring System (CMS) and other such surveillance projects in India and around the world, the question of whether the collection of metadata is “harmless” has arisen.[1] In order to examine this question, FinFisher[2] — surveillance spyware — has been chosen as a case study to briefly examine to what extent the collection and surveillance of metadata can potentially violate the right to privacy and other human rights. FinFisher has been selected as a case study not only because its servers have been recently found in India[3] but also because its “remote monitoring solutions” appear to be very pervasive even on the mere grounds of metadata.

FinFisher in India

FinFisher is spyware which has the ability to take control of target computers and capture even encrypted data and communications. The software is designed to evade detection by anti-virus software and has versions which work on mobile phones of all major brands.[4] In many cases, the surveillance suite is installed after the target accepts installation of a fake update to commonly used software.[5] Citizen Lab researchers have found three samples of FinSpy that masquerades as Firefox.[6]

FinFisher is a line of remote intrusion and surveillance software developed by Munich-based Gamma International. FinFisher products are sold exclusively to law enforcement and intelligence agencies by the UK-based Gamma Group.[7] A few months ago, it was reported that command and control servers for FinSpy backdoors, part of Gamma International´s FinFisher “remote monitoring solutions”, were found in a total of 25 countries, including India.[8]

The following map, published by the Citizen Lab, shows the 25 countries in which FinFisher servers have been found.[9]


The above map shows the results of scanning for characteristics of FinFisher command and control servers.

FinFisher spyware was not found in the countries coloured blue, while the colour green is used for countries not responding. The countries using FinFisher range from shades of orange to shades of red, with the lightest shade of orange ranging to the darkest shade of red on a scale of 1-6, and with 1 representing the least active servers and 6 representing the most active servers in regards to the use of FinFisher. On a scale of 1-6, India is marked a 3 in terms of actively using FinFisher.[10]

Research published by the Citizen Lab reveals that FinSpy servers were recently found in India, which indicates that Indian law enforcement agencies may have bought this spyware from Gamma Group and might be using it to target individuals in India.[11] According to the Citizen Lab, FinSpy servers in India have been detected through the HostGator operator and the first digits of the IP address are: 119.18.xxx.xxx. Releasing complete IP addresses in the past has not proven useful, as the servers are quickly shut down and relocated, which is why only the first two octets of the IP address are revealed.[12]

The Citizen Lab's research reveals that FinFisher “remote monitoring solutions” were found in India, which, according to Gamma Group's brochures, include the following:

FinSpy: hardware or software which monitors targets that regularly change location, use encrypted and anonymous communications channels and reside in foreign countries. FinSpy can remotely monitor computers and encrypted communications, regardless of where in the world the target is based. FinSpy is capable of bypassing 40 regularly tested antivirus systems, of monitoring the calls, chats, file transfers, videos and contact lists on Skype, of conducting live surveillance through a webcam and microphone, of silently extracting files from a hard disk, and of conducting a live remote forensics on target systems. FinSpy is hidden from the public through anonymous proxies.[13]

FinSpy Mobile: hardware or software which remotely monitors mobile phones. FinSpy Mobile enables the interception of mobile communications in areas without a network, and offers access to encrypted communications, as well as to data stored on the devices that is not transmitted. Some key features of FinSpy Mobile include the recording of common communications like voice calls, SMS/MMS and emails, the live surveillance through silent calls, the download of files, the country tracing of targets and the full recording of all BlackBerry Messenger communications. FinSpy Mobile is hidden from the public through anonymous proxies.[14]

FinFly USB: hardware which is inserted into a computer and which can automatically install the configured software with little or no user-interaction and does not require IT-trained agents when being used in operations. The FinFly USB can be used against multiple systems before being returned to the headquarters and its functionality can be concealed by placing regular files like music, video and office documents on the device. As the hardware is a common, non-suspicious USB device, it can also be used to infect a target system even if it is switched off.[15]

FinFly LAN: software which can deploy a remote monitoring solution on a target system in a local area network (LAN). Some of the major challenges law enforcement faces are mobile targets, as well as targets who do not open any infected files that have been sent via email to their accounts. FinFly LAN is not only able to deploy a remote monitoring solution on a target´s system in local area networks, but it is also able to infect files that are downloaded by the target, by sending fake software updates for popular software or to infect the target by injecting the payload into visited websites. Some key features of the FinFly LAN include: discovering all computer systems connected to LANs, working in both wired and wireless networks, and remotely installing monitoring solutions through websites visited by the target. FinFly LAN has been used in public hotspots, such as coffee shops, and in the hotels of targets.[16]

FinFly Web: software which can deploy remote monitoring solutions on a target system through websites. FinFly Web is designed to provide remote and covert infection of a target system by using a wide range of web-based attacks. FinFly Web provides a point-and-click interface, enabling the agent to easily create a custom infection code according to selected modules. It provides fully-customizable web modules, it can be covertly installed into every website and it can install the remote monitoring system even if only the email address is known.[17]

FinFly ISP: hardware or software which deploys a remote monitoring solution on a target system through an ISP network. FinFly ISP can be installed inside the Internet Service Provider Network, it can handle all common protocols and it can select targets based on their IP address or Radius Logon Name. Furthermore, it can hide remote monitoring solutions in downloads by targets, it can inject remote monitoring solutions as software updates and it can remotely install monitoring solutions through websites visited by the target.[18]

Although FinFisher is supposed to be used for “lawful interception”, it has gained notoriety for targeting human rights activists.[19] According to Morgan Marquis-Boire, a security researcher and technical advisor at the Munk School and a security engineer at Google, FinSpy has been used in Ethiopia to target an opposition group called Ginbot.[20] Researchers have argued that FinFisher has been sold to Bahrain's government to target activists, and such allegations were based on an examination of malicious software which was emailed to Bahraini activists.[21] Privacy International has argued that FinFisher has been deployed in Turkmenistan, possibly to target activists and political dissidents.[22]

Many questions revolving around the use of FinFisher and its “remote monitoring solutions” remain vague, as there is currently inadquate proof of whether this spyware is being used to target individuals by law enforcement agencies in the countries where command and control servers have been found, such as India.[23] However, FinFisher's brochures which were circulated in the ISS world trade shows and leaked by WikiLeaks do reveal some confirmed facts: Gamma International claims that its FinFisher products are capable of taking control of target computers, of capturing encrypted data and of evading mainstream anti-virus software.[24] Such products are exhibited in the world's largest surveillance trade show and probably sold to law enforcement agencies around the world.[25] This alone unveils a concerning fact: spyware which is so sofisticated that it even evades encryption and anti-virus software is currently in the market and law enforcement agencies can potentially use it to target activists and anyone who does not comply with social conventions.[26] A few months ago, two Indian women were arrested after having questioned the shutdown of Mumbai for Shiv Sena patriarch Bal Thackeray's funeral.[27] Thus, it remains unclear what type of behaviour is targeted by law enforcement agencies and whether spyware, such as FinFisher, would be used in India to track individuals without a legally specified purpose.

Furthermore, India lacks privacy legislation which could safeguard individuals from potential abuse, while sections 66A and 69 of the Information Technology (Amendment) Act, 2008, empower Indian authorities with extensive surveillance capabilites.[28] While it remains unclear if Indian law enforcement agencies are using FinFisher spy products to unlawfully target individuals, it is a fact that FinFisher control and command servers have been found in India and that, if used, they could potentially have severe consequences on individuals' right to privacy and other human rights.[29]

The Myth of Harmless Metadata

Over the last months, it has been reported that the Central Monitoring System (CMS) is being implemented in India, through which all telecommunications and Internet communications in the country are being centrally intercepted by Indian authorities. This mass surveillance of communications in India is enabled by the omission of privacy legislation and Indian authorities are currently capturing the metadata of communications.[30]

Last month, Edward Snowden leaked confidential U.S documents on PRISM, the top-secret National Security Agency (NSA) surveillance programme that collects metadata through telecommunications and Intenet communications. It has been reported that through PRISM, the NSA has tapped into the servers of nine leading Internet companies: Microsoft, Google, Yahoo, Skype, Facebook, YouTube, PalTalk, AOL and Apple.[31] While the extent to which the NSA is actually tapping into these servers remains unclear, it is certain that the NSA has collected metadata on a global level.[32] Yet, the question of whether the collection of metadata is “harmful” remains ambiguous.

According to the National Information Standards Organization (NISO), the term “metadata” is defined as “structured information that describes, explains, locates or otherwise makes it easier to retrieve, use or manage an information resource”. NISO claims that metadata is “data about data” or “information about information”.[33] Furthermore, metadata is considered valuable due to its following functions:

Resource discovery
Organizing electronic resources
Interoperability
Digital Identification
Archiving and preservation

Metadata can be used to find resources by relevant criteria, to identify resources, to bring similar resources together, to distinguish dissimilar resources and to give location information. Electronic resources can be organized through the use of various software tools which can automatically extract and reformat information for Web applications. Interoperability is promoted through metadata, as describing a resource with metadata allows it to be understood by both humans and machines, which means that data can automatically be processed more effectively. Digital identification is enabled through metadata, as most metadata schemes include standard numbers for unique identification. Moreover, metadata enables the archival and preservation of large volumes of digital data.[34]

Surveillance projects, such as PRISM and India's CMS, collect large volumes of metadata, which include the numbers of both parties on a call, location data, call duration, unique identifiers, the International Mobile Subscriber Identity (IMSI) number, email addresses, IP addresses and browsed webpages.[35] However, the fact that such surveillance projects may not have access to content data might potentially create a false sense of security.[36] When Microsoft released its report on data requests by law enforcement agencies around the world in March 2013, it revealed that most of the disclosed data was metadata, while relatively very little content data was allegedly disclosed.[37]

imilarily, Google's transparency report reveals that the company disclosed large volumes of metadata to law enforcement agencies, while restricting its disclosure of content data.[38]

Such reports may potentially provide a sense of security to the public, as they reassure that the content of personal emails, for example, has not been shared with the government, but merely email addresses – which might be publicly available online anyway. However, is content data actually more “harmful” than metadata? Is metadata “harmless”? How much data does metadata actually reveal?

The Guardian recently published an article which includes an example of how individuals can be tracked through their metadata. In particular, the example explains how an individual is tracked – despite using an anonymous email account – by logging in from various hotels' public Wi-Fi and by leaving trails of metadata that include times and locations. This example illustrates how an individual can be tracked through metadata alone, even when anonymous accounts are being used.[39]

Wired published an article which states that metadata can potentially be more harmful than content data because “unlike our words, metadata doesn't lie”. In particular, content data shows what an individual says – which may be true or false – whereas metadata includes what an individual does. While the validity of the content within an email may potentially be debateable, it is undeniable that an individual logged into specific websites – if that is what that individuals' IP address shows. Metadata, such as the browsing habits of an individual, may potentially provide a more thorough and accurate profile of an individual than that individuals' email content, which is why metadata can potentially be more harmful than content data.[40]

Furthermore, voice content is hard to process and written content in an email or chat communication may not always be valid. Metadata, on the other hand, provides concrete patterns of an individuals' behaviour, interests and interactions. For example, metadata can potentially map out an individuals' political affiliation, interests, economic background, institution, location, habits and the people that individual interacts with. Such data can potentially be more valuable than content data, because while the validity of email content is debateable, metadata usually provides undeniable facts. Not only is metadata more accurate than content data, but it is also ideally suited to automated analysis by a computer. As most metadata includes numeric figures, it can easily be analysed by data mining software, whereas content data is more complicated.[41]

FinFisher products, such as FinFly LAN, FinFly Web and FinFly ISP, provide solid proof that the collection of metadata can potentially be “harmful”. In particular, FinFly LAN can be deployed in a target system in a local area network (LAN) by infecting files that are downloaded by the target, by sending fake software updates for popular software or by infecting the payload into visited websites. The fact that FinFly LAN can remotely install monitoring solutions through websites visited by the target indicates that metadata alone can be used to acquire other sensitive data.[42]

FinFly Web can deploy remote monitoring solutions on a target system through websites. Additionally, FinFly Web can be covertly installed into every website and it can install the remote monitoring system even if only the email address is known.[43] FinFly ISP can select targets based on their IP address or Radius Logon Name. Furthermore, FinFly ISP can remotely install monitoring solutions through websites visited by the target, as well as inject remote monitoring solutions as software updates.[44] In other words, FinFisher products, such as FinFly LAN, FinFly Web and FinFly ISP, can target individuals, take control of their computers and their data, and capture even encrypted data and communications with the help of metadata alone.

The example of FinFisher products illustrates that metadata can potentially be as “harmful” as content data, if acquired unlawfully and without individual consent.[45] Thus, surveillance schemes, such as PRISM and India's CMS, which capture metadata without individuals' consent can potentially pose a major threat to the right to privacy and other human rights.[46] Privacy can be defined as the claim of individuals, groups or institutions to determine when, how and to what extent information about them is communicated to others.[47] Furthermore, privacy is at the core of human rights because it protects individuals from abuse by those in power.[48] The unlawful collection of metadata exposes individuals to the potential violation of their human rights, as it is not transparent who has access to their data, whether it is being shared with third parties or for how long it is being retained.

It is not clear if Indian law enforcement agencies are actually using FinFisher products, but the Citizen Lab did find FinFisher command and control servers in the country which indicates that there is a high probability that such spyware is being used.[49] This probability is highly concerning not only because the specific spy products have such advanced capabilities that they are even capable of capturing encrypted data, but also because India currently lacks privacy legislation which could safeguard individuals.

Thus, it is recommended that Indian law enforcement agencies are transparent and accountable if they are using spyware which can potentially breach their citizens' human rights and that privacy legislation is enacted into law. Lastly, it is recommended that all surveillance technologies are strictly regulated with regards to the protection of human rights and that Indian authorities adopt the principles on communication surveillance formulated by the Electronic Frontier Foundation and Privacy International.[50] The above could provide a decisive first step in ensuring that India is the democracy it claims to be.

[1]. Robert Anderson (2013), “Wondering What Harmless 'Metadata' Can Actually Reveal? Using Own Data, German Politician Shows Us”, The CSIA Foundation, http://bit.ly/1cIhu7G

[2]. Gamma Group, FinFisher IT Intrusion, http://bit.ly/fnkGF3

[3]. Morgan Marquis-Boire, Bill Marczak, Claudio Guarnieri & John Scott-Railton, “You Only Click Twice: FinFisher's Global Proliferation”, The Citizen Lab, 13 March 2013, http://bit.ly/YmeB7I

[4]. Michael Lewis, “FinFisher Surveillance Spyware Spreads to Smartphones”, The Star: Business, 30 August 2012, http://bit.ly/14sF2IQ

[5]. Marcel Rosenbach, “Troublesome Trojans: Firm Sought to Install Spyware Via Faked iTunes Updates”, Der Spiegel, 22 November 2011, http://bit.ly/14sETVV

[6]. Intercept Review, Mozilla to Gamma: stop disguising your FinSpy as Firefox, 02 May 2013, http://bit.ly/131aakT

[7]. Intercept Review, LI Companies Review (3) – Gamma, 05 April 2012, http://bit.ly/Hof9CL

[8]. Morgan Marquis-Boire, Bill Marczak, Claudio Guarnieri & John Scott-Railton, For Their Eyes Only: The Commercialization of Digital Spying, Citizen Lab and Canada Centre for Global Security Studies, Munk School of Global Affairs, University of Toronto, 01 May 2013, http://bit.ly/ZVVnrb

[9]. Morgan Marquis-Boire, Bill Marczak, Claudio Guarnieri & John Scott-Railton, “You Only Click Twice: FinFisher's Global Proliferation”, The Citizen Lab, 13 March 2013, http://bit.ly/YmeB7I

[10]. Ibid.

[11]. Morgan Marquis-Boire, Bill Marczak, Claudio Guarnieri & John Scott-Railton, For Their Eyes Only: The Commercialization of Digital Spying, Citizen Lab and Canada Centre for Global Security Studies, Munk School of Global Affairs, University of Toronto, 01 May 2013, http://bit.ly/ZVVnrb

[12]. Morgan Marquis-Boire, Bill Marczak, Claudio Guarnieri & John Scott-Railton, “You Only Click Twice: FinFisher's Global Proliferation”, The Citizen Lab, 13 March 2013, http://bit.ly/YmeB7I

[13]. Gamma Group, FinFisher IT Intrusion, FinSpy: Remote Monitoring & Infection Solutions, WikiLeaks: The Spy Files, http://bit.ly/zaknq5

[14]. Gamma Group, FinFisher IT Intrusion, FinSpy Mobile: Remote Monitoring & Infection Solutions, WikiLeaks: The Spy Files, http://bit.ly/19pPObx

[15]. Gamma Group, FinFisher IT Intrusion, FinFly USB: Remote Monitoring & Infection Solutions, WikiLeaks: The Spy Files, http://bit.ly/1cJSu4h

[16]. Gamma Group, FinFisher IT Intrusion, FinFly LAN: Remote Monitoring & Infection Solutions, WikiLeaks: The Spy Files, http://bit.ly/14J70Hi

[17]. Gamma Group, FinFisher IT Intrusion, FinFly Web: Remote Monitoring & Intrusion Solutions, WikiLeaks: The Spy Files, http://bit.ly/19fn9m0

[18]. Gamma Group, FinFisher IT Intrusion, FinFly ISP: Remote Monitoring & Intrusion Solutions, WikiLeaks: The Spy Files, http://bit.ly/13gMblF

[19]. Gerry Smith, “FinSpy Software Used To Surveil Activists Around The World, Reports Says”, The Huffington Post, 13 March 2013, http://huff.to/YmmhXI

[20]. Jeremy Kirk, “FinFisher Spyware seen Targeting Victims in Vietnam, Ethiopia”, Computerworld: IDG News, 14 March 2013, http://bit.ly/14J8BwW

[21]. Reporters without Borders: For Freedom of Information (2012), The Enemies of the Internet: Special Edition: Surveillance, http://bit.ly/10FoTnq

[22]. Privacy International, FinFisher Report, http://bit.ly/QlxYL0

[23]. Morgan Marquis-Boire, Bill Marczak, Claudio Guarnieri & John Scott-Railton, “You Only Click Twice: FinFisher's Global Proliferation”, The Citizen Lab, 13 March 2013, http://bit.ly/YmeB7I

[24]. Gamma Group, FinFisher IT Intrusion, FinSpy: Remote Monitoring & Infection Solutions, WikiLeaks: The Spy Files, http://bit.ly/zaknq5

[25]. Adi Robertson, “Paranoia Thrives at the ISS World Cybersurveillance Trade Show”, The Verge, 28 December 2011, http://bit.ly/tZvFhw

[26]. Gerry Smith, “FinSpy Software Used To Surveil Activists Around The World, Reports Says”, The Huffington Post, 13 March 2013, http://huff.to/YmmhXI

[27]. BBC News, “India arrests over Facebook post criticising Mumbai shutdown”, 19 November 2012, http://bbc.in/WoSXkA

[28]. Indian Ministry of Law, Justice and Company Affairs, The Information Technology (Amendment) Act, 2008, http://bit.ly/19pOO7t

[29]. Morgan Marquis-Boire, Bill Marczak, Claudio Guarnieri & John Scott-Railton, For Their Eyes Only: The Commercialization of Digital Spying, Citizen Lab and Canada Centre for Global Security Studies, Munk School of Global Affairs, University of Toronto, 01 May 2013, http://bit.ly/ZVVnrb

[30]. Phil Muncaster, “India introduces Central Monitoring System”, The Register, 08 May 2013, http://bit.ly/ZOvxpP

[31]. Glenn Greenwald & Ewen MacAskill, “NSA PRISM program taps in to user data of Apple, Google and others”, The Guardian, 07 June 2013, http://bit.ly/1baaUGj

[32]. BBC News, “Google, Facebook and Microsoft seek data request transparency”, 12 June 2013, http://bbc.in/14UZCCm

[33]. National Information Standards Organization (2004), Understanding Metadata, NISO Press, http://bit.ly/LCSbZ

[34]. Ibid.

[35]. The Hindu, “In the dark about 'India's PRISM'”, 16 June 2013, http://bit.ly/1bJCXg3 ; Glenn Greenwald, “NSA collecting phone records of millions of Verizon customers daily”, The Guardian, 06 June 2013, http://bit.ly/16L89yo

[36]. Robert Anderson, “Wondering What Harmless 'Metadata' Can Actually Reveal? Using Own Data, German Politician Shows Us”, The CSIA Foundation, 01 July 2013, http://bit.ly/1cIhu7G

[37]. Microsoft: Corporate Citizenship, 2012 Law Enforcement Requests Report,http://bit.ly/Xs2y6D

[38]. Google, Transparency Report, http://bit.ly/14J7hKp

[39]. Guardian US Interactive Team, A Guardian Guide to your Metadata, The Guardian, 12 June 2013, http://bit.ly/ZJLkpy

[40]. Matt Blaze, “Phew, NSA is Just Collecting Metadata. (You Should Still Worry)”, Wired, 19 June 2013, http://bit.ly/1bVyTJF

[41]. Ibid.

[42]. Gamma Group, FinFisher IT Intrusion, FinFly LAN: Remote Monitoring & Infection Solutions, WikiLeaks: The Spy Files, http://bit.ly/14J70Hi

[43]. Gamma Group, FinFisher IT Intrusion, FinFly Web: Remote Monitoring & Intrusion Solutions, WikiLeaks: The Spy Files, http://bit.ly/19fn9m0

[44]. Gamma Group, FinFisher IT Intrusion, FinFly ISP: Remote Monitoring & Intrusion Solutions, WikiLeaks: The Spy Files, http://bit.ly/13gMblF

[45]. Robert Anderson, “Wondering What Harmless 'Metadata' Can Actually Reveal? Using Own Data, German Politician Shows Us”, The CSIA Foundation, 01 July 2013, http://bit.ly/1cIhu7G

[46]. Shalini Singh, “India's surveillance project may be as lethal as PRISM”, The Hindu, 21 June 2013, http://bit.ly/15oa05N

[47]. Cyberspace Law and Policy Centre, Privacy, http://bit.ly/14J5u7W

[48]. Bruce Schneier, “Privacy and Power”, Schneier on Security, 11 March 2008, http://bit.ly/i2I6Ez

[49]. Morgan Marquis-Boire, Bill Marczak, Claudio Guarnieri & John Scott-Railton, For Their Eyes Only: The Commercialization of Digital Spying, Citizen Lab and Canada Centre for Global Security Studies, Munk School of Global Affairs, University of Toronto, 01 May 2013, http://bit.ly/ZVVnrb

[50]. Elonnai Hickok, “Draft International Principles on Communications Surveillance and Human Rights”, The Centre for Internet and Society, 16 January 2013, http://bit.ly/XCsk9b

For more details visit http://editors.cis-india.org/internet-governance/blog/fin-fisher-in-india-and-myth-of-harmless-metadata

The Phishing Society: Why 'Facebook' is more Dangerous than the Government Spying on You - A Talk by Maria Xynou

maria — 2013-09-27T09:16:19Z

Next Wednesday, you are all invited to listen to Maria Xynou's crazy - or not-so-crazy theory of the "Phishing Society", in which surveillance, control and oppression is not imposed in a traditional top-down manner, but rather a personal and collective "choice"...come and engage in a heated debate!

We have read and heard a lot of theories on the contemporary "Surveillance Society"...but how much of that is about surveillance per se? Are we being spied on a top-down manner...or are we enabling our own surveillance? Have the masses ever directly or indirectly "pursued" their own surveillance in the past...or are we witnessing a new phenomenon in history?

Most geeks would probably agree that the term "phishing" is used to describe the act of attempting to acquire sensitive information, such as usernames, passwords, private encryption keys and credit card details, by masquerading as a trustworthy entity. In other words, "phishing" is commonly used to describe the acquisition of sensitive, personal data through the use of bait.

The aim of the talk on Wednesday is to discuss the possible existence of a "Phishing Society", through which the act of providing bait — whether it being security, commodities, services or relationships — is a common, contemporary practice on a social, political and economic level in the pursuit of the "Gold of the Digital Age": personal data. Through this discussion, the "Government spying vs. Corporate spying" debate will be looked at, in an attempt to understand why the dynamics of surveillance have changed over the last year.

Everyone with an open mind is welcome to attend this talk and to share all opinions, ideas and concerns!

Video

For more details visit http://editors.cis-india.org/internet-governance/events/the-phishing-society-a-talk-by-maria-xynou

Report on the 5th Privacy Round Table meeting

maria — 2013-07-26T08:24:27Z

This report entails an overview of the discussions and recommendations of the fifth Privacy Round Table in Calcutta, on 13th July 2013.

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

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 seven multi-stakeholder round table meetings on “privacy” from April 2013 to October 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 round table meetings will be presented at the Internet Governance meeting in October 2013.

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

New Delhi Roundtable: 13 April 2013
Bangalore Roundtable: 20 April 2013
Chennai Roundtable: 18 May 2013
Mumbai Roundtable: 15 June 2013
Kolkata Roundtable: 13 July 2013
New Delhi Roundtable: 24 August 2013
New Delhi Final Roundtable and National Meeting: 19 October 2013

Following the first four Privacy Round Tables in Delhi, Bangalore, Chennai and Mumbai, this report entails an overview of the discussions and recommendations of the fifth Privacy Round Table meeting in Kolkata, on 13th July 2013.

Presentation by Mr. Reijo Aarnio – Finnish Data Protection Ombudsman

The fifth Privacy Round Table meeting began with a presentation by Mr. Reijo Aarnio, the Finnish Data Protection Ombudsman. In particular, Mr. Aarnio initiated his presentation by distinguishing privacy and data protection and by emphasizing the need to protect both equally within a legal framework. Mr. Aarnio proceeded by highlighting that 96 percent of the Finnish community believes that data protection is necessary, especially since it is considered to play an essential role in the enhancement of the self-determination of the individual. Fuerthermore, Mr. Aarnio pointed out that the right to privacy in Finland in guaranteed under section 10 of the Finnish constitution.

The Finnish Data Protection Ombudsman argued that in order for India to gain European data protection adequacy, the implementation of a regulation for data protection in the country is a necessary prerequisite. Mr. Aarnio argued that although the draft Privacy (Protection) Bill 2013 provides a decisive step in regulating the use of data, the interception of communications and surveillance in India, it lacks in defining the data controller and the data subject, both of which should be legally specified.

In order to support his argument that India needs privacy legislation, the Ombudsman clarified the term “data protection” by stating that it relates to the following:

individual autonomy
the right to know
the right to live without undue interference
the right to be evaluated on the basis of correct and relevant information
the right to know the criteria automatic decision-making systems are based on
the right to trust data security
the right to receive assistance from independent authorities
the right to be treated in accordance with all other basic rights in a democracy
the right to have access to public documents
the freedom of speech

In addition to the above, Mr. Aarnio argued that the reason why data protection is important is because it ensures the respect for human dignity, individual autonomy and honor.

The Finnish Data Protection Ombudsman gave a brief overview of the development and history of data protection, by citing the oathe of Hippokrates, the Great Revolutions and World War II, all throughout which data protection has gained increased significance. Mr. Aarnio pointed out that as a result of the development and proliferation of technology, societies have evolved and that data protection is a major component of the contemporary Information Society. The Ombudsman stated that in the Information Society, information is money and open data and big data are products which are being commercialised and commodified. Hence, in order to ensure that human rights are not commericalised and commodified in the process, it is necessary to establish legal safeguards which can prevent potential abuse.

Article 8 of the European Charter of Fundamental Rights guarantees the protection of personal data. Mr. Aarnio argued that the Parliament is the most important data protection authority in Europe and that privacy is legally guaranteed on three levels:

Protection of personal life: The Criminal Code (chapter 24) addresses and protects freedom of speech and secrecy regulations
Communication: Protection of content and traffic data
Data Protection: The Personal Data Act creates Right to Know and to affect/impact, the right to organise one's personal life, automatic processing of personal data and maintenance of register

The Ombudsman also referred to the Directive 95/46/EC of the European Parliament of 24 October 1995 on the protection of individuals with regard to the processing of personal data and the free movement of such data.

Mr. Aarnio argued that in the contemporary ecosystem of the Information Society, countries need “Privacy by Design”, which entails the description of the processing of personal data and the evaluation of its lawfulness. In particular, the purpose for the collection and processing of data should be legally defined, as well as whether such data will be shared with third parties, disclosed and/or retained. The Ombudsman argued that India needs to define its data controllers and to legally specify their roles, in order to ensure that the management of data does not result in the infringement upon the right to privacy and other human rights.

The Finnish Data Protection Ombudsman concluded his presentation by stating that data security is not only a technological matter, but also – and in some cases, mostly – a legal issue, which is why India should enact the draft Privacy (Protection) Bill 2013.

Discussion of the draft Privacy (Protection) Bill 2013

Chapter I: Definitions

The discussion of the draft Privacy (Protection) Bill 2013 commenced with a debate on whether such a Bill is necessary at all, given that section 43 of the IT Act is considered (by participants at the round table) to regulate the protection of data. It was pointed out that although section 43 of the Information Technology Act provides some rules for data protection, the Committee has stated that these rules are inadequate. In particular, India currently lacks statutory provisions dealing with data protection and rules are inadequate because they are subject to parliamentary debate, and the Parliament does not have the right to vote on rules. The Parliament does not have the right to amend rules, which means that it does not have the right to amend the rules on data protection under the IT Act. Since the rules under section 43 of the IT Act are not subject to parliamentary review, India needs a seperate privacy statutue. Hence, the round table reached a consensus on the discussion of the draft Privacy (Protection) Bill 2013.

Personal data is defined in the draft Privacy (Protection) Bill 2013 as any data which relates to a natural person, while sensitive personal data is defined as a subset of personal data, such as biometric data, medical history, sexual preference, political affiliation and criminal history. It was pointed out that race, religion and caste are not included in the Bill's definition for sensitive personal data because the Government of India refuses to acknowledge these types of information as personal data. According to the Government, the collection of such data is routine and there have been no cases when such data has been breached, which is why race, religion and caste should not be included in the definition for sensitive personal information. However, the last caste sensus took place in 1931 and since then there has been no caste sensus, because it is considered to be a sensitive issue. This contradictory fact to the government's position was pointed out during the round table meeting.

A participant argued that financial information should be included within the definition for sensitive personal data. This was countered by a participant who argued that India has the Credit Information Companies Act which covers credit information and sets out specific information for the protection of credit data by banks and relevant companies. Yet the question of whether general financial information should be included in the definition for sensitive personal data was further discussed, and many participants supported its inclusion in the definition.

The question of whether IP addresses should be included in the definition for personal data was raised. The response to this question was that IP addresses should be included in the definition since they relate to the identification of a natural person. However, the question of whether a specific IP address is considered personal data, as many individuals use the Web through the same IP address, remained unclear. Other participants raised the question of whether unborn humans and deceased persons should have privacy rights. The response to this was that in India, only the court can decide if a deceased person can have the right to privacy.

The controversy between the UID project and the protection of biometric data under the definition for sensitive personal information was discussed in the round table. In particular, it was pointed out that because the UID scheme requires the mass biometric collection in India is contradictory to the protection of such data under the Bill. As the UID scheme remains unregulated, it is unclear who will have access to the biometric data, who it will be shared with, whether it will be disclosed and retained and if so, for how long. All the questions which revolve around the implementation of the UID scheme and the use of the biometric data collected raise concerns in regards to what extent such data can realistically be protected under privacy legislation.

On this note, a participant mentioned that under EU regulation, an ID number is included in the definition for sensitive personal information and it was recommended that the same is added in India's draft Privacy (Protection) Bill 2013. Furthermore, a participant recommended that fingerprints are also included in the definition for sensitive personal data, especially in light of the NPR and UID scheme.

A participant argued that passwords should also be included in the definition for sensitive personal data, as well as private keys which are used for encryption and decryption. It was pointed out that section 69 of the IT Act requires the disclosure of encryption keys upon the request from authorities, which potentially can lead to the violation of privacy and other human rights. Hence the significance of protecting passwords and encryption keys which can safeguard data was highly emphasized and it was argued that they should definitely be included in the definition for sensitive personal data. This position was countered by a participant who argued that the Government of India should have access to private encyrption keys for national security purposes.

On the definition of sensitive personal data, it was emphasized that this term should relate to all data which can be used for discrimination, which is why it needs to be protected. It was further emphasized that it took Europe twelve years to reach a definition for personal data, which is why India still needs to look at the issue in depth and encounter all the possible violations which may potentially occur from the non-regulation of various types of data. Most participants agreed that financial information, passwords and private encryption keys should be added in the definition for sensitive personal data.

The fifth round table entailed a debate on whether political affiliation should be included in the definition for sensitive personal data. In particular, one participant argued that political parties disclose the names of their members and that in many cases they are required to do in order to show their source of income. Hence, it was argued that political affiliation should not be included in the definition for sensitive personal data, since it is not realistic to expect political parties to protect their members' privacy. This was countered by other participants who argued that anonymity in political communications is important, especially when an individual is in a minority position, which is why the term political affiliation should be included in the definition for sensitive personal data.

The discussion on the definitions in the draft Privacy (Protection) Bill 2013 concluded with comments that the definiton for surveillance is very exclusive of many types of surveillance. In particular, it was argued that the definition for surveillance does not appear to cover artificial intelligence, screen shots and various other forms of surveillance, all of which should be regulated.

Chapter II: Right to Privacy

Section 4 of the draft Privacy (Protection) Bill 2013 states that all natural persons have a right to privacy. Section 5 of the Bill includes exemptions to the right to privacy. On this note, it was pointed out that during the round table that there is no universal definition of privacy and thus it is challenging to define the term and to regulate it. Furthermore, the rapid pace at which technology is proliferating was emphasized, along with its impact on the right to privacy. For example, it was mentioned that emails were not covered by privacy legislation in the past, but this needs to be amended accordingly. The European Data Protection Directive was established in 1995 and does not regulate many privacy issues which arise through the Internet, which is why it is currently being reviewed. Similarily, it was argued that privacy legislation in India should encompass provisions for potential data breaches which may occur through the Internet and various forms of technology.

A participant argued that the draft Privacy (Protection) Bill 2013 should include provisions for data subjects, which enable them to address their rights. In particular, it was argued that data subjects should have the right to access information collected and retained about them and that they should have the right to make corrections. The reponse to this comment was that the Bill may be split into two seperate Bills, where the one would regulate data protection and the other would regulate the interception of communications and surveillance, while the data subject would be addressed extensively. Furthermore, participants raised questions of how to define the data controller and the data subjects within the Indian context.

Other questions which were raised during the round table included whether spam should be addressed by the Bill. Several participants argued that spam should not be regulated, as it is not necessarily harmful to data subjects. Other participants argued that the isse of access to data should be addressed prior to the definition of privacy. Another argument was that commerical surveillance should not be conducted within restrictions, which is why it should not be inlcuded in the exemptions to the right to privacy. It was also pointed out that residential surveillance should be allowed, as long as the cameras are pointed inwards and do not capture footage of third parties outside of a residence. On this note, it was argued that surveillance in the work place should also be exempted from the right to privacy, as that too can be considered the private property of the owner. Moreover, it was emphasized that the surveillance of specific categories of people should also be excluded from the exemptions to the right to privacy.

A participant argued that in some cases, NGOs may be collecting information for some “beneficial purpose” and that such cases should be excluded from the exemptions to the right to privacy. Other participants argued that in many cases, data needs to be collected for market research and that the Bill should regulate what applies in such cases. All such arguments were countered by a participant, who argued that Section 5 of the Bill on the exemptions to the right to privacy should be deleted, as it creates to many complications. This recommendation was backed up by the example of a husband capturing a photograph of his wife and then publishing the image without her consent.

During this discussion, a participant raised the question of to what extent the right to privacy applies to minors. This question was supported by the example of Facebook, where many minors have profiles but the extent to which this data is protected remains ambiguous. Furthermore, it was pointed out that it remains unclear whether privacy legislation can practically safeguard minors who choose to share their data online. A participant responded to these concerns by stating that Facebook is a data controller and has to comply with privacy law to protect its customers' data. It was pointed out that it does not matter if the data controller is a company or an NGO; in every case, the data controller is obliged to comply with data protection law and regulations.

Furthermore, it was pointed out that Facebook allows for minors aged 13 to create a profile, while it remains unclear how minors can enforce their privacy rights. In particular, it remains unclear how the mediated collection of minors' data can be regulated and it was recommended that this is addressed by the Bill. A participant replied to this by stating that Indian laws rule in favour of minors, but that this simultaneously remains a grey area. In particular, it was pointed out that rules under section 43 of the Information Technology (IT) Act cover Internet access by minors, but this still remains an unclear area which needs further debate and analysis.

The question which prevailed at the end of the discussion of Chapter 2 of the Bill was on the social media and minors, and on how minors' data can be protected when it is being published immediately through the social media, such as Facebook. Furthermore, it was recommended that the Bill addresses the practical operationalisation of the right to privacy within the Indian context.

Chapter III: Protection of Personal Data

The discussion of Chapter 3 of the draft Privacy (Protection) Bill 2013 on the protection of personal data commenced with a reference to the nine privacy principles of the Justice AP Shah Justice Committee. The significance of the principles of notice and consent were outlined, as it was argued that individuals should have the right to be informed about the data collected about them, as well as to have the rigt to access such data and make possible corrections.

Collection of Personal Data

The discussion on the collection of personal data (as outlined in Section 6 of Chapter 3 of the Bill) commenced with a participant arguing that a company seeking to collect personal data should always have a stated function. In particular, a company selling technological products or services should not collect biometric data, for example, unless it serves a specified function. It was pointed out that data collection should be restricted to the specified purposes. For example, a hospital should be able to collect medical data because it relates to its stated function, but an online company which provides services should not be eligible to collect such data, as it deviates from its stated function.

During the discussion, it was emphasized that individuals should have the right to be informed when their data is being collected, which data is being collected, the conditions for the disclosure of such data and everything else that revolves around the use of their data once it has been collected. However, a participant questioned whether it is practically feasible for individuals to provide consent to the collection of their data every time it is being collected, especially since the privacy policies of companies keep changing. Moreover, it was questioned whether companies can or should resume the consent of their customers once their privacy policy has changed. On this note, a participant argued that companies should be obliged to notify their customers every time their privacy policy changes and every time the purpose behind their data collection changes.

On the issue of consent for data collection, a participant argued that individuals should have the right to withdraw their consent, even after their data has been collected and in such cases, such data should be destroyed. This was countered by another participant who argued that it is not realistic to expect companies to acquire individual consent every time the purpose behind data collection changes, nor is it feasible to allow for the withdrawal of consent without probable cause.

The issue of indirect consent to the collection of personal data was raised and, in particular, several participants argued that the Bill should have provisions which would regulate circumstances where indirect consent can be obtained for the collection of personal data. Furthermore, it was emphasized that the Bill should also include a notice for all potential purposes of data collection which may arise in the future; if the purpose for data collection changes based on conditions specified, then companies should not be mandated to notify individuals. Moreover, a participant argued that the Bill should include provisions which would enable individuals to opt-in and/or opt-out from data collection.

On the issue of consent, it was further outlined that consent provides a legitimate purpose to process data and that the data subject should have the right to be informed prior to the collection of his or her data. However, it was emphasized that the draft Privacy (Protection) Bill 2013 is a very strict regulation, as consent cannot always be acquired prior to data collection, because there are many cases where this is not practically feasible. It was pointed out that in the European Data Protection Directive, it is clear that consent cannot always be acquired prior to data collection. The example of medical cases was mentioned, as patients may not always be capable to provide consent to data collection which may be necessary.

In particular, it was highlighted that the European Data Protection Directive includes provisions for the processing of personal data, as well as exceptions for when consent is not required prior to data collection. The Directive guarantees the legitimate interest of the data controller and data processing is based upon the provisions of privacy legislation. The outsourcing of data is regulated in the European Union, and it was recommended that India regulates it too. Following this comment, it was stated that the recent leaks on the NSA's surveillance raise the issue of non-consentual state collection of data and non-consentual private disclosure of data and a brief debate revolved around these issues in the round table.

On the issue of mediated data collection, the situations in which collected data is mediated by third parties was analysed. It was recommended that the law is flexible to address the various types of cases when collected data is mediated, such as when a guardian needs to handle and take decisions for data of a mentally disabled person being collected. However, it was pointed out that mediated data collection should be addressed sectorally, as a doctor, for example, would address mediated data in a different manner than a company. It was emphasized that specific cases – such a parent taking a mediated decision on the data collection of his or her child – should be enabled, whereas all other cases should be prohibited. Thus it was recommended that language to address the mediated collection of data should be included in the Bill.

A participant raised the question of whether there should be seperate laws for the private collection of data and state collection of data. It was mentioned that this is the case in Canada. Another question which was raised was what happens when state collectors hire private contractors. The UID was brought as an example of state collection of data, while private contractors have been hired and are involved in the process of data collection. This could potentially enable the collection and access of data by unauthorised third parties, to which individuals may have not given their consent to. Thus it was strongly recommended that the Bill addresses such cases and prevents unauthorised collection and access of data.

The discussion on the collection of personal data ended with an interesting test case study for privacy: should the media have the right to disclose individuals' personal data? A debate revolved around this question and participants recommended that the Bill regulates the collection, processing, sharing, disclosure and retention of personal data by the media.

Retention of Personal Data

The discussion on the retention of personal data commenced with the statement that there are various exceptions to the retention of data in India, which are outlined in various court cases. It was pointed out that data should be retained in compliance with the law, but this is problematic as, in various occasions, a verbal order by a policeman can be considered adequate, but this can potentially increase the probability for abuse. A question which was raised was whether an Act of Parliament should allow for the long term storage of data, especially when there is inadequate data to support its long-term retention. It was pointed out that in some cases there are laws which allow for the storage of data for up to ten years, without the knowledge – let alone the consent – of the individual. Thus, the issue of data retention in India remains vague and should be addressed by the draft Privacy (Protection) Bill 2013.

Questions were raised on the duration of data retention periods and on whether there should be one general data retention law or several sectoral data retention laws. The participants disagreed on whether an Act of Parliament should regulate data retention or whether data retention should be regulated by sectoral authorities. A participant recommended “privacy by design” and stated that the question of data retention should be addressed by data controllers. Other participants raised the question of purpose limitation, especially for cases when data is being re-retained after the end of its retention period. A participant recommended that requirements for the anonymisation of data once it has exceeed its retention period should be established. However, this proposal was countered by participants who argued that the pracitcal enforcement of the anonymisation of retained data is not feasible within India.

Destruction of Personal Data

The retention of personal data can be prevented once data has been destroyed. However, participants argued that various types of data are being collected through surveillance products which are controlled by private parties. In such cases, it was argued that it remains unclear how it will be verified that data has indeed being destroyed.

A participant argued that the main problem with data destruction is that even if data has been deleted, it can be retrieved up to seven times; thus the question which arises is how can individuals know if their data has been permanently destroyed, or if it is being secretly retrieved. Questions were raised on how the permanent retention of data can be prevented, especially when even deleted data can be retrieved. Hence it was recommended that information security experts cooperate with data controllers and the Privacy Commissioner, to ensure that data is permanently destroyed and/or that data is not being accessed after the end of its retention period. Such experts would ensure that data is actually being destroyed.

Another participant pointed out the difference between the wiping of data and the deletion of data. In particular, the participant argued that data is being deleted when it is being overwritten by other data, and can potentially be recovered. Wiping of data, on the other hand, involves the wiping out of data which can never be recovered. The participant recommended that the Bill explicitly states that data is wiped out in order to ensure that data is not being indirectly retained.

Processing of Personal Data

The dicsussion on the processing of personal data began with the question of national archives. In particular, participants argued that if the processing of data is strictly regulated, that would restrict access to national archives and the draft Privacy (Protection) Bill 2013 should address this issue.

Questions were raised on the non-consentual processing of personal data and on how individual consent should be acquired prior to the processing of personal data. It was pointed out that the Article 29 Working Party has published an Opinion on purpose limitation with regards to data processing and it was recommended that a similar approach is adopted in India.

Furthermore, it was stated that IT companies are processing data from the EU and the U.S., but it remains unclear how individual consent can be obtained in such cases. A debate evolved on how to bind foreign data processors to meet the data requirements of India, as a minimum prerequisite to ensure that outsourced data is not breached. In light of the Edward Snowden leaks of NSA surveillance, many questions were raised on how Indian data outsourced and stored abroad can be protected.

It was highlighted during the round table that all data processing in India requires certification, but since the enforceability of the contracts relies on individuals, this raises issues of data security. Moreover, questions were raised on how Indian companies can protect the data of their foreign data subjects. Thus, it was recommended that the processing of data is strictly regulated through the draft Privacy (Protection) Bill 2013 to ensure that outsourced data and data processed in the country is not breached.

Security of Personal Data

On the issue of data security, the participants argued that the data subject should always be informed in cases when the confidentiality of their personal data is violated. Confidentiality is usually contractually limited, whereas secrecy is not, which is why both terms are included in the draft Privacy (Protection) Bill 2013. In particular, secrecy is usually used for public information, whereas confidentiality is not.

Participants argued that the Bill should include restrictions on the media, in order to ensure that the confidentiality and integrity of their sources' data is preserved. Several participants stated that the Bill should also include provisions for whistleblowers which would provide security and confidentiality for their data. The participants of the round table engaged in a debate on whether the media should be strictly regulated in order to ensure the confidentiality of their sources' data. On the one hand, it was argued that numerous data breaches have occured as a result of the media mishandling their sources' data. On the other hand, it was stated that all duties of secrecy are subject to the public interest, which is why the media reports on them and which is why the media should not be restricted.

Disclosure of Personal Data

The discussion on the disclosure of personal data commenced with participants pointing out that the draft Privacy (Protection) Bill 2013 does not include requirements for consent prior to the disclosure of personal data, which may potentially lead to abuse. Questions were raised on the outsourcing of Indian data abroad and on the consequences of its foreign disclosure. Once data is outsourced, it remains unclear how the lawful disclosure or non-disclosure of data can be preserved, which is why it was recommended that the Bill addresses such issues.

A participant argued that there is a binding relationship between the data controller and the data subject and that disclosure should be regulated on a contractual level. Another participant raised the question of enforcement: How can regulations on the disclosure of personal data be enforced? The response to this question was that the law should focus on the data controller and that when Indian data is being outsourced abroad, the Indian data controller should ensure that the data subjects' data is not breached. However, other participants raised the question of how data can be protected when it is outsourced to countries where the rule of law is not strong and when the country is considered inadequate in terms of data protection.

With an increased transnational flow of information, questions arise on how individuals can protect their information. A participant recommended that it should be mandatory for companies to state in their contracts who they are outsourcing data to and whether such data will be disclosed to third parties. However, this proposal as countered by a participant who argued that even if this was inforced, it is still not possible to enforce the rights of an Indian data subject in a country which does not have a strong rule of law or which generally has weak legislation. A specific example was mentioned, where E.G. Infosys and Wipro Singapore have a contractual agreement and Indian data is outsourced. It was pointed out that if such data is breached, it remains unclear if the individual should address this issue to Wipro India, as well as which law should apply in this case and whether companies should be liable.

A participant suggested that the data controller discloses data without having acquired prior consent, if the Government of India requests it. However, this was countered by a participant who argued that even in such a case, the question of regulating access to data still remains. Other participants argued that the Right to Information Act has been misused and that too much information is currently being disclosed. It was recommended that the Right to Information Act is amended and that the Bill includes strict regulations for the disclosure of personal data.

Meeting Conclusion

The fifth Privacy Round Table meeting commenced with a presentation on privacy and data protection by Mr. Reijo Aarnio, the Finnish Data Protection Ombudsman, and proceeded with a discussion of the draft Privacy (Protection) Bill 2013. The participants engaged in a heated debate and provided recommendations for the definitions used in the Bill, as well as for the regulation of data protection. The recommendations for the improvement of the draft Privacy (Protection) Bill 2013 will be considered and incorporated in the final draft.

For more details visit http://editors.cis-india.org/internet-governance/blog/report-on-the-5th-privacy-round-table