Centre for Internet and Society

Spreadsheet data on sample of 50 security companies

maria — 2014-02-28T16:13:39Z

For more details visit http://editors.cis-india.org/internet-governance/blog/data-on-surveillance-technology-companies

Security, Surveillance and Data Sharing Schemes and Bodies in India

maria — 2015-03-14T02:35:31Z

For more details visit http://editors.cis-india.org/internet-governance/blog/security-surveillance-and-data-sharing.pdf

Right to Information (RTI) Requests to BSNL and MTNL Regarding Security Equipment

maria — 2015-02-25T15:04:56Z

As part of research, on July 2, 2013, the Centre for Internet and Society (CIS) had sent Right to Information (RTI) requests to two of the largest internet service providers (ISPs) in India: Mahanagar Telephone Nigam Limited (MTNL) and Bharat Sanchar Nigam Limited (BSNL) requesting answers to some questions.

Answers to the following questions were requested:

Please list the companies from which MTNL/BSNL has bought all its security equipment.
What type of security equipment does MTNL/BSNL use to assist Indian law enforcement agencies in detecting and preventing crime, terrorism and all other illegal activity? Please provide the certification for all such equipment.
What malware does MTNL/BSNL test for? What does MTNL/BSNL use for testing malware in its networks?
Which proxy server does MTNL/BSNL use and is it used for filtering data? If so, what type of data is being filtered and for what purpose? Is authorisation required and if so, by whom?
Does MTNL/BSNL use FinFly ISP? If so, who authorises its use and under what conditions?

M. K. Sheda, the appellate authority of MTNL, responded to the above questions on August 3, 2013 with the following answers:

MTNL procures all its equipment through an open competitive bidding process and the details of all past tenders are available on the MTNL website. Equipment from multiple vendors are operational in GSM MTNL Packet-Core Network and specific names cannot be given due to security reasons.
MTNL uses the security equipment by the Department of Telecommunications, Government of India, to assist Indian law enforcement agencies. The details cannot be disclosed as the information is classified as "secret" as per MTNL IT Policy Revision 2.0 and also comes under Section -8 (1) (a) and (d) of the RTI Act 2005.
MTNL GSM Packet Core equipment for data access uses MTNL ISP as its interface with external entities. Thus information is pertaining to MTNL ISP and hence a reply may please be taken from the GM (Broadband) unit.
Same answer as "3" above.
Same answer as "3" above.

BSNL has still not responded to the above questions.

Click below to download the respective files:

For more details visit http://editors.cis-india.org/internet-governance/blog/rti-requests-to-bsnl-mtnl-regarding-security-equipment

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

Report on the 4th Privacy Round Table meeting

maria — 2013-07-12T11:04:25Z

This report entails an overview of the discussions and recommendations of the fourth Privacy Round Table in Mumbai, on 15th June 2013.

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

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

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

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

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 Final Roundtable and National Meeting: 17 August 2013

Following the first three Privacy Round Tables in Delhi, Bangalore and Chennai, this report entails an overview of the discussions and recommendations of the fourth Privacy Round Table meeting in Mumbai, on 15th June 2013.

Discussion of the Draft Privacy (Protection) Bill 2013

Discussion of definitions: Chapter 1

The fourth Privacy Round Table meeting began with a discussion of the definitions in Chapter 1 of the draft Privacy (Protection) Bill 2013. In particular, it was stated that in India, the courts argue that the right to privacy indirectly derives from the right to liberty, which is guaranteed in article 21 of the constitution. However, this provision is inadequate to safeguard citizens from potential abuse, as it does not protect their data adequately. Thus, all the participants in the meeting agreed with the initial notion that India needs privacy legislation which will explicitly regulate data protection, the interception of communications and surveillance within India. To this extent, the participants started a thorough discussion of the definitions used in the draft Privacy (Protection) Bill 2013.

It was specified in the beginning of the meeting that the definition of personal data in the Bill applies to natural persons and not to juristic persons. A participant argued that the Information Technology Act refers to personal data and that the draft Privacy (Protection) Bill 2013 should be harmonised with existing rules. This was countered by a participant who argued that the European Union considers the Information Technology Act inadequate in protecting personal data in India and that since India does not have data secure adequacy, the Bill and the IT Act should not be harmonised.

Other participants argued that all other relevant acts should be quoted in the discussion so that it does not overlap with existing provisions in other rules, such as the IT Act. Furthermore, this was supported by the notion that the Bill should not clash with existing legislation, but this was dismissed by the argument that this Bill – if enacted into law – would over right all other competing legislation. Special laws over right general laws in India, but this would be a special law for the specific purpose of data protection.

The definition of sensitive personal data includes biometric data, political affiliation and past criminal history, but does not include ethnicity, caste, religion, financial information and other such information. It was argued that one of the reasons why such categories are excluded from the definition of sensitive personal data is because the government requests such data on a daily basis and that it is not willing to take any additional expense to protect such data. It was stated that the Indian government has argued that such data collection is necessary for caste census and that financial information, such as credit data, should not be included in the definition for sensitive personal data, because a credit Act in India specifically deals with how credit data should be used, shared and stored.

Such arguments were backlashed by participants arguing that definitions are crucial because they are the “building blocks” of the entire Bill and that ethnicity, caste, religion and financial information should not be excluded from the Bill, as they include information which is sensitive within the Indian context. In particular, some participants argued that the Bill would be highly questioned by countries with strong privacy legislation, as certain categories of information, such as ethnicity and caste, are definitely considered to be sensitive personal information within India. The argument that it is too much of a bureaucratic and financial burden for the Indian government to protect such personal data was countered by participants who argued that in that case, the government should not be collecting that information to begin with – if it cannot provide adequate safeguards.

The debate on whether ethnicity, religion, caste and financial information should be included in the definition for sensitive personal data continued with a participant arguing that no cases of discrimination based on such data have been reported and that thus, it is not essential for such information to be included in the definition. This argument was strongly countered by participants who argued that the mere fact that the government is interested in this type of information implies that it is sensitive and that the reasons behind the governments´ interest in this information should be investigated. Furthermore, some participants argued that a new provision for data on ethnicity, religion, caste and financial information should be included, as well as that there is a difference between voluntarily handing over such information and being forced to hand it over.

The inclusion of passwords and encryption keys in the definition of sensitive personal data was highly emphasized by several participants, especially since their disclosure can potentially lead to unauthorised access to volumes of personal data. It was argued that private keys in encryption are extremely sensitive personal data and should definitely be included within the Bill.

In light of the NSA leaks on PRISM, several participants raised the issue of Indian authorities protecting data stored in foreign servers. In particular, some participants argued that the Bill should include provisions for data stored in foreign servers in order to avoid breaches for international third parties. However, a participant argued that although Indian companies are subject to the law, foreign data processors cannot be subject to Indian law, which is why they should instead provide guarantees through contracts.

Several participants strongly argued that the IT industry should not be subject to some of the privacy principles included in the Report of the Group of Experts on Privacy, such as the principle of notice. In particular, they argued that customers choose to use specific services and that by doing so, they trust companies with their data; thus the IT industry should not have to comply with the principle of notice and should not have to inform individuals of how they handle their data.

On the issue of voluntary disclosure of personal data, a participant argued that, apart from the NPR and UID, Android and Google are conducting the largest data collection within India and that citizens should have the jurisdiction to go to court and to seek that data. The issue of data collection was further discussed over the next sessions.

Right to Privacy: Chapter 2

The discussion of the right to privacy, as entailed in chapter 2 of the draft Privacy (Protection) Bill 2013, started with a participant stating that governments own the data citizens hand over to them and that this issue, along with freedom from surveillance and illegal interception, should be included in the Bill.

Following the distinction between exemptions and exceptions to the right to privacy, a participant argued that although it is clear that the right to privacy applies to all natural persons in India, it is unclear if it also applies to organizations. This argument was clarified by a participant who argued that chapter 2 clearly protects natural persons, while preventing organisations from intervening to this right. Other participants argued that the language used in the Bill should be more gender neutral and that the term “residential property” should be broadened within the exemptions to the right to privacy, to also include other physical spaces, such as shops. On this note, a participant argued that the word “family” within the exemptions should be more specifically defined, especially since in many cases husbands have controlled their wives when they have had access to their personal accounts.

The definition of “natural person” was discussed, while a participant raised the question of whether data protection applies to persons who have undergone surgery and who have changed their sexual orientation; it was recommended that such provisions are included within the Bill. The above questions were answered by a participant who argued that the generic European definitions for “natural persons” and “family” could be adopted, as well as that CCTV cameras used in public places, such as shops, should be subject to the law, because they are used to monitor third parties.

Other participants suggested that commercial violations are not excluded from the Bill, as the broadcasting of people, for example, can potentially lead to a violation of the right to privacy. In particular, it was argued that commercial establishments should not be included in the exemptions section of the right to privacy, in contrast to other arguments that were in favour of it. Furthermore, participants argued that the interaction between transparency and freedom of information should be carefully examined and that the exemptions to the right to privacy should be drafted accordingly.

Protection of Personal Data: Chapter 3

Some of the most important discussions in the fourth Privacy Round Table meeting revolved around the protection of personal data.

Collection of personal data

The discussion on the collection of personal data started with a statement that the issue of individual consent prior to data collection is essential and that in every case, the data subject should be informed of its data collection, data processing, data sharing and data retention.

It was pointed out that, unlike most privacy laws around the world, this Bill is affirmative because it states that data can only be collected once the data subject has provided prior consent. It was argued that if this Bill was enacted into law, it would probably be one of the strictest laws in the world in terms of data collection, because data can only be collected with individual consent and a legitimate purpose. Data collection in the EU is not as strict, as there are some exemptions to individual consent; for example, if someone in the EU has a heart attack, other individuals can disclose his or her information. It was emphasized that as this Bill limits data collection to individual consent, it does not serve other cases when data collection may be necessary but individual consent is not possible. A participant pointed out that, although the Justice AP Shah Report of the Group of Experts on Privacy states that “consent may not be acquired in some cases”, such cases are not specified within the Bill.

Other issues that were raised are that the Bill does not specify how individual consent would be obtained as a prerequisite to data collection. In particular, it remains unclear whether such consent would be acquired through documentation, a witness or any other way. Thus it was emphasized that the method for acquiring individual consent should be clearly specified within the Bill, especially since it is practically hard to obtain consent for large portions of the Indian population that live below the line of poverty.

A participant argued that data collection on private detectives, from reality TV shows and on physical movement and location should also be addressed in the Bill. Furthermore, other participants argued that specific explanations to exempt medical cases and state collection of data which is directly related to the provision of welfare should be included in the Bill. Participants recommended that individuals should have the right to opt out from data collection for the purpose of providing welfare programmes and other state-run programmes.

The need to define the term “legitimate purpose” was pointed out to ensure that data is not breached when it is being collected. A participant recommended the introduction of a provision in the Bill for anonymising data in medical case studies and it was pointed out that it is very important to define what type of data can be collected. In particular, it was argued that a large range of personal data is being collected in the name of “public health” and “public security” and that, in many cases, patients may provide misinformed consent, because they may think that the revelation of their personal data is necessary, when actually it might not be. It was recommended that this issue is addressed and that necessary provisions are included in the Bill.

In the cases where data is collected for statistics, individuals may not be informed of their data being collected and may not provide consent. It was also recommended that this issue is addressed and included in the Bill. However, it was also pointed out that in many cases, individuals may choose to use a service, but they may not be able to consent to their data collection and Android is an example of this. Thus it was argued that companies should be transparent about how they handle users´ data and that they should require individuals´ consent prior to data collection.

It was emphasized that governments have a duty of transparency towards their citizens and that the fact that, in many cases, citizens are obliged to hand over their data without giving prior consent to how their data is being used should be taken into consideration. In particular, it was argued that many citizens need to use specific services or welfare programmes and that they are obliged to hand over their personal information. It was recommended that the Bill incorporates provisions which would oblige all services to acquire individual consent prior to data collection. However, the issue that was raised is that often companies provide long and complicated contracts and policy guides which discourage individuals from reading them and thus from providing informed consent; it was recommended that this issue is addressed as well.

Storage and destruction of personal data

The discussion on the storage and destruction of personal data started with a statement that different sectors should have different data retention frameworks. The proposal that a ubiquitous data retention framework should not apply to all sectors was challenged by a participant who stated that the same data retention period should apply to all ISPs and telecoms. Furthermore, it was added that regulators should specify the data retention period based on specific conditions and circumstances. This argument was countered by participants who argued that each sector should define its data retention framework depending on many variables and factors which affect the collection and use of data.

In European laws, no specific data retention periods are established. In particular, European laws generally state that data should only be retained for a period related to the purpose of its collection. Hence it was pointed out that data retention frameworks should vary from sector to sector, as data, for example, may need to be retained longer for medical cases than for other cases. This argument, however, was countered by participants who argued that leaving the prescription of a data retention period to various sectors may not be effective in India.

Questions of how data retention periods are defined were raised, as well as which parties should be authorised to define the various purposes for data retention. One participant recommended that a common central authority is established, which can help define the purpose for data retention and the data retention period for each sector, as well as to ensure that data is destroyed once the data retention period is over. Another participant recommended that a three year data retention period should be applied to all sectors by default and that such periods could be subject to change depending on specific cases.

Security of personal data and duty of confidentiality

Participants recommended that the definition of “data integrity” should be included in Chapter 1 of the draft Privacy (Protection) Bill 2013. Other participants raised the need to define the term “adequacy” in the Bill, as well as to state some parameters for it. It was also suggested that the term “adequacy” could be replaced by the term “reasonable”.

One of the participants raised the issue of storing data in a particular format, then having to transfer that data to another format which could result in the modification of that data. It was pointed out that the form and manner of securing personal data should be specifically defined within the Bill. However, it was argued that the main problem in India is the implementation of the law, and that it would be very difficult to practically implement the draft Privacy (Protection) Bill in India.

Disclosure of personal data

The discussion on the disclosure of personal data started with a participant arguing that the level of detail disclosed within data should be specified within the Bill. Another participant argued that the privacy policies of most Internet services are very generic and that the Bill should prevent such services from publicly disclosing individuals´ data. On this note, a participant recommended that a contract and a subcontract on the disclosure of personal data should be leased in order to ensure that individuals are aware of what they are providing their consent to.

It was recommended that the Bill should explicitly state that data should not be disclosed for any other purpose other than the one for which an individual has provided consent. Data should only be used for its original purpose and if the purpose for accessing data changes within the process, consent from the individual should be acquired prior to the sharing and disclosure of that data. A participant argued that banks are involved with consulting and other advisory services which may also lead to the disclosure of data; all such cases when information is shared and disclosed to (unauthorised) third parties should be addressed in the Bill.

Several participants argued that companies should be responsible for the data they collect and that should not share it or disclose it to unauthorised third parties without individuals´ knowledge or consent. On this note, other participants argued that companies should be legally allowed to share data within a group of companies, as long as that data is not publicly disclosed. An issue that was raised by one of the participants is that online companies, such as Gmail, usually acquire consent from customers through one “click” to a huge document which not only is usually not read by customers, but which vaguely entails all the cases for which individuals would be providing consent for. This creates the potential for abuse, as many specific cases which would require separate, explicit consent, are not included within this consent mechanism.

This argument was countered by a participant who stated that the focus should be on code operations for which individuals sign and provide consent, rather than on the law, because that would have negative implications on business. It was highlighted that individuals choose to use specific services and that by doing so they trust companies with their data. Furthermore, it was argued that the various security assurances and privacy policies provided by companies should suffice and that the legal regulation of data disclosure should be avoided.

Consent-based sharing of data should be taken into consideration, according to certain participants. The factor of “opt in” should also be included when a customer is asked to give informed consent. Participants also recommended that individuals should have the power to “opt out”, which is currently not regulated but deemed to be extremely important. Generally it was argued that the power to “opt in” is a prerequisite to “opt out”, but both are necessary and should be regulated in the Bill.

A participant emphasized the need to regulate phishing in the Bill and to ensure that provisions are in place which could protect individuals´ data from phishing attacks. On the issue of consent when disclosing personal data, participants argued that consent should be required even for a second flow of data and for all other flows of data to follow. In other words, it was recommended that individual consent is acquired every time data is shared and disclosed. Moreover, it was argued that if companies decide to share data, to store it somewhere else or to disclose it to third parties years after its initial collection, the individual should have the right to be informed.

However, such arguments were countered by participants who argued that systems, such as banks, are very complex and that they don´t always have a clear idea of where data flows. Thus, it was argued that in many cases, companies are not in a position to control the flow of data due to a lack of its lack of traceability and hence to inform individuals every time their data is being shared or disclosed.

Participants argued that the phrase “threat to national security” in section 10 of the Bill should be explicitly defined, because national security is a very broad term and its loose interpretation could potentially lead to data breaches. Furthermore, participants argued that it is highly essential to specify which authorities would determine if something is a threat to national security.

The discussion on the disclosure of personal data concluded with a participant arguing that section 10 of the Bill on the non-disclosure of information clashes with the Right to Information Act (RTI Act), which mandates the opposite. It was recommended that the Bill addresses the inevitable clash between the non-disclosure of information and the right to information and that necessary provisions are incorporated in the Bill.

Presentation by Mr. Billy Hawkes – Irish Data Protection Commissioner

The Irish Data Protection Commissioner, Mr. Billy Hawkes, attended the fourth Privacy Round Table meeting in Mumbai and discussed the draft Privacy (Protection) Bill 2013.

In particular, Mr. Hawkes stated that data protection law in Ireland was originally introduced for commercial purposes and that since 2009 privacy has been a fundamental right in the European Union which spells out the basic principles for data protection. Mr. Hawkes argued that India has successful outsourcing businesses, but that there is a concern that data is not properly protected. India has not been given data protection adequacy by the European Union, mainly because the country lacks privacy legislation.

There is a civic society desire for better respect for human rights and there is the industrial desire to be considered adequate by the European Union and to attract more international customers. However, privacy and data protection are not covered adequately in the Information Technology Act, which is why Mr. Hawkes argued that the draft Privacy (Protection) Bill 2013 should be enacted in compliance with the principles from the Justice AP Shah Report on the Group of Experts on Privacy. Enacting privacy legislation in India would, according to Mr. Hawkes, be a prerequisite so that India can potentially be adequate in data protection in the future.

The Irish Data Protection Commissioner referred to the current negotiations taking place in the European Union for the strengthening of the 1995 Directive on Data Protection, which is currently being revisited and which will be implemented across the European Union. Mr. Hawkes emphasized that it is important to have strong enforcement powers and to ask companies to protect data. In particular, he argued that data protection is good customer service and that companies should acknowledge this, especially since data protection reflects respect towards customers.

Mr. Hawkes highlighted that other common law countries, such as Canada and New Zealand, have achieved data secure adequacy and that India can potentially be adequate too. More and more countries in the world are seeking European adequacy. Privacy law in India would not only safeguard human rights, but it´s also good business and would attract more international customers, which is why European adequacy is important. In every outsourcing there needs to be a contract which states that the requirements of the data controller have been met. Mr. Hawkes emphasized that it is a competitive disadvantage in the market to not be data adequate, because most countries will not want their data outsourced to countries which are inadequate in data security.

As a comment to previous arguments stated in the meeting, it was pointed out that in Ireland, if companies and banks are not able to track the flow of data, then they are considered to be behaving irresponsibly. Furthermore, Mr. Hawkes states that data adequacy is a major reputational issue and that inadequacy in data security is bad business. It is necessary to know where the responsibility for data lies, which party initially outsourced the data and how it is currently being used. Data protection is a fundamental right in the European Union and when data flows outside the European Union, the same level of protection should apply. Thus other non-EU countries should comply with regulations for data protection, not only because it is a fundamental human right, but also because it is bad business not to do so.

The Irish Data Protection Commissioner also referred to the “Right to be Forgotten”, which is the right to be told how long data will be retained for and when it will be destroyed. This provides individuals some control over their data and the right to demand this control.

On the funding of data protection authorities, Mr. Hawkes stated that funding varies and that in most cases, the state funds the data protection authority – including Ireland. Data protection authorities are substantially funded by their states across the European Union and they are allocated a budget every year which is supposed to cover all their costs. The Spanish data protection authorities, however, are an exception because a large amount of their activities are funded by fines.The data protection authorities in the UK (ICO) are funded through registration fees paid by companies and other organizations.

When asked about how many employees are working in the Irish data protection commissioner´s office, Mr. Hawkes replied that only thirty individuals are employed. Employees working in the commissioner´s office are responsible for overseeing the protection of the data of Facebook users, for example. Facebook-Ireland is responsible for handling users´ data outside of North America and the commissioner´s office conducted a detailed analysis to ensure that data is protected and that the company meets certain standards. Facebook´s responsibility is limited as a data controller as individuals using the service are normally covered by the so-called "household exemption" which puts them outside the scope of data protection law. The data protection commissioner conducts checks and balances, writes reports and informs companies that if they comply with privacy and data protection, then they will be supported.

Data protection in Ireland covers all the organizations, without exception. Mr. Hawkes stated that EU data protection commissioners meeting in the "Article 29" Working Party spend a significant amount of their time dealing with companies like Google and Facebook and with whether they protect their customers´ data.

The Irish Data Protection Commissioner recommended that India establishes a data protection commission based on the principles included in the Justice AP Shah Report of the Group of Experts on Privacy. In particular, an Indian data protection commission would have to deal with a mix of audit inspections, complaints, greater involvement with sectors, transparency, accountability and liability to the law. Mr. Hawkes emphasized that codes of practice should be implemented and that the focus should not be on bureaucracy, but on accountability. It was recommended that India should adopt an accountability approach, where punishment will be in place when data is breached.

On the recent leaks on the NSA´s surveillance programme, PRISM, Mr. Hawkes commented that he was not surprised. U.S. companies are required to give access to U.S. law enforcement agencies and such access is potentially much looser in the European Union than in the U.S., because in the U.S. a court order is normally required to access data, whereas in the European Union that is not always the case. Mr. Hawkes stated that there needs to be a constant questioning of the proportionality, necessity and utility of surveillance schemes and projects in order to ensure that the right to privacy and other human rights are not violated.

Mr. Hawkes stated that the same privacy law should apply to all organizations and that India should ensure its data adequacy over the next years. The Irish Data Protection Commissioner is responsible for Facebook Ireland and European law is about protecting the rights of any organisation that comes under European jurisdiction, whether it is a bank or a company. Mr. Billy Hawkes emphasized that the focus in India should be on adequacy in data security and in protecting citizens´ rights.

Meeting conclusion

The fourth Privacy Round Table meeting entailed a discussion of the draft Privacy (Protection) Bill 2013 and Mr. Billy Hawkes, the Irish Data Protection Commissioner, gave a presentation on adequacy in data security and on his thoughts on data protection in India. The discussion on the draft Privacy (Protection) Bill 2013 led to a debate and analysis of the definitions used in the Bill, of chapter 2 on the right to privacy, and on data collection, data retention, data sharing and data disclosure. The participants provided a wide range of recommendations for the improvement of the draft Privacy (Protection) Bill and all will be incorporated in the final draft. The Irish Data Protection Commissioner, Mr. Billy Hawkes, stated that the European Union has not given data adequacy to India because it lacks privacy legislation and that data inadequacy is not only a competitive disadvantage in the market, but it also shows a lack of respect towards customers. Mr. Hawkes strongly recommended that privacy legislation in compliance with the Justice AP Shah report is enacted, to ensure that India is potentially adequate in data security in the future and that citizens´ right to privacy and other human rights are guaranteed.

For more details visit http://editors.cis-india.org/internet-governance/blog/report-on-the-4th-privacy-round-table-meeting

Report on the 3rd Privacy Round Table meeting

maria — 2013-07-12T11:35:22Z

This report entails an overview of the discussions and recommendations of the third Privacy Round Table meeting in Chennai, on 18th May 2013.

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

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

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

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 Final Roundtable and National Meeting: 17 August 2013

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

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

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

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

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

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

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

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

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

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

Discussion on the draft Privacy (Protection) Bill 2013

Discussion of definitions: Chapter II

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

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

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

Discussion of “Protection of Personal Data”: Chapter III

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

Issue of Consent

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

Outsourcing of Data

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

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

Data Retention

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

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

Data Processing

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

Data Disclosure

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

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

Discussion of “Interception of Communications”: Chapter IV

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

Meeting conclusion

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

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

Report on the 2nd Privacy Round Table meeting

maria — 2013-07-12T11:54:28Z

This post entails a report on the second Privacy Round Table meeting which took place on 20th April 2013.

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

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

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

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 Final Roundtable and National Meeting: 17 August 2013

Following the first Privacy Round Table in Delhi, this report entails an overview of the discussions and recommendations of the second Privacy Round Table meeting in Bangalore, on 20^th April 2013.

Overview of DSCI´s paper on “Strengthening Privacy Protection through Co-regulation”

The meeting began with a brief summary of the first Privacy Round Table meeting which took place in Delhi on 13^th April 2013. Following the summary, the Data Security Council of India (DSCI) presented the paper “Strengthening Privacy Protection through Co-regulation”. In particular, DSCI presented the regulatory framework for data protection under the IT (Amendment) Act 2008, which entails provisions for sensitive personal information, privacy principles and “reasonable security practices”. It was noted that the privacy principles, as set out in the Justice AP Shah Report, refer to: data collection limitation, data quality, purpose specification, use limitation, security safeguards, openness and individual participation. The generic definitions of identified privacy principles refer to: notice, choice and consent, collection limitation, purpose specification, access and correction, disclosure of information, security, openness/transparency and accountability. However, the question which prevailed is what type of regulatory framework should be adopted to incorporate all these privacy principles.

DSCI suggested a co-regulatory framework which would evolve from voluntary self-regulation with legal recognition. The proposed co-regulatory regime could have different types of forms based on the role played by the government and industry in the creation and enforcement of rules. DSCI mentioned that the Justice AP Shah Committee recommends: (1) the establishment of the office of the Privacy Commissioner, both at the central and regional levels, (2) a system of co-regulation, with emphasis on SROs and (3) that SROs would be responsible for appointing an ombudsman to receive and handle complaints.

The discussion points brought forward by DSCI were:

What role should government and industry respectively play in developing and enforcing a regulatory framework?
How can the codes of practice developed by industry be enforced in a co-regulatory regime? How will the SRO check the successful implementation of codes of practice? How can the SRO penalize non-compliances?
How can an organization be incentivized to follow the codes of practice under the SRO?
What should be the role of SROs in redressal of complaints?
What should be the business model for SROs?

DSCI further recommended the establishment of “light weight” regulations based on global privacy principles that value economic beliefs of data flow and usage, while guaranteeing privacy to citizens. DSCI also recommended that bureaucratic structures that could hinder business interests be avoided, as well as that the self-regulatory framework of businesses adapts technological advances to the privacy principles. Furthermore, DSCI recommended that self-regulatory bodies are legally recognised.

Discussion on the draft Privacy (Protection) Bill 2013

Discussion of definitions and preamble: Chapter I & II

The second session began with a discussion of definitions used in the Bill. In particular, many participants argued that the term ´personal data´ should be more specific, especially since the vague definition of the term could create a potential for abuse. Other participants asked who the protection of personal data applies to and whether it covers both companies and legal persons. Furthermore, the question of whether the term ´personal data´ entails processed and stored data was raised, as well as whether the same data protection regulations apply to foreign citizens residing in India. A participant argued that the preamble of the Bill should be amended to include the term ´governance´ instead of ´democracy´, as this privacy legislation should be applicable in all cases in India, regardless of the current political regime.

Sensitive Personal Data

The meeting proceeded with a discussion of the term ´sensitive personal data´ and many participants argued that the term should be broadened to include more categories, such as religion, ethic group, race, caste, financial information and others. Although the majority of the participants agreed that the term ´sensitive personal data´ should be redefined, they disagreed in regards to what should be included in the term. In particular, the participants were not able to reach a consensus on whether religion, caste and financial information should be included in the definition of the term ´sensitive personal data´. Other participants argued that passwords should be included within the scope of ´sensitive personal data´, as they can be just as crucial as financial information.

Information vs. Data

During the discussion, a participant argued that there is a subtle difference between the term ´information´ and ´data´ and that this should be pointed out in the Bill to prevent potential abuse. Another participant argued that ´sensitive personal data´ should be restricted to risk factors, which is why unique identifiers, such as passwords, should be included in the definition of the term. Other participants argued that the context of data defines whether it is ´sensitive´ or not, as it may fall in the category of ´national security´ in one instance, but may not in another. Thus, all types of data should be considered within their context, rather than separately. The fact that privacy protection from several financial services already exists was pointed out and the need to exclude pre-existing protections from the Bill was emphasised. In particular, a participant argued that banks are obliged to protect their customers´ financial information either way, which is why it should not be included in the definition of the term ´sensitive personal data´.

Exemptions

Several exemptions to the right to privacy were discussed throughout the meeting. A participant asked whether the right to privacy would also apply to deceased persons and to unborn infants. Another participant asked whether the term ´persons´ would be restricted to natural persons or if it would also apply to artificial persons. The fact that children should also have privacy rights was discussed in the meeting and in particular, participants questioned whether children´s right to privacy should be exempted in cases when they are being surveilled by their own parents.

Discussion of “Protection of Personal Data”: Chapter III

Following the discussion of definitions used in the Bill, the meeting proceeded with a discussion on the protection of personal data. A participant emphasized that the probability of error in data is real and that this could lead to major human rights violations if not addressed appropriately and in time. The fact that the Bill does not address the element of error within data was pointed out and suggested that it be included in draft Privacy (Protection) Bill. Another participant recommended an amendment to the Bill which would specify the parties, such as the government or companies, which would be eligible to carry out data collection in India. As new services are been included, the end purpose of data collection should be taken into consideration and, in particular, the ´new purposes´ for data collection would have to be specified at every given moment.

Data Collection

In terms of data collection, a participant emphasized that the objectives and purposes are different from an individual and an industry perspective, which should be explicitly considered through the Bill. Furthermore, the participant argued that the fact that multiple purposes for data collection may arise should be taken into consideration and relevant provisions should be incorporated in the in Bill. Another participant argued that the issue of consent for data collection may be problematic, especially since the purpose of data collection may change in the process and while an individual may have given consent to the initial purpose for data collection, he/she may not have given consent to the purposes which evolved throughout the process. Thus, explicitly defining the instances for data collection may not be feasible.

Consent

On the issue of consent, several participants argued that it would be important to distinguish between ´mandatory´ and ´optional´ information, as, although individuals may be forced by the government to hand over certain cases, in other cases they choose to disclose their personal data. Thus participants argued that the Bill should provide different types of privacy protections for these two separate cases. Other participants argued that the term ´consent´ varies depending on its context and that this should too be taken into consideration within the draft Privacy (Protection) Bill. It was also argued that a mechanism capable of gaining individual consent prior to data collection should be developed. However, a participant emphasized upon the fact that, in many cases, it is very difficult to gain individual consent for data collection, especially when individuals cannot read or write. Thus the need to include provisions for uneducated or disabled persons within the Bill was highly emphasized.

Further questions were raised in regards to the withdrawal of consent. Several participants argued that the draft Privacy (Protection) Bill should explicitly determine that all data is destroyed once an individual has withdrawn consent. Participants also argued that consent should also be a prerequisite to the collection, processing, sharing and retention of secondary users´ data, such as the data of individuals affiliated to the individual in question. A participant argued that there are two problematic areas of consent: (1) financial distribution (such as loans) and (2) every financial institution must store data for a minimum of seven to eight years. Having taken these two areas in consideration, the participant questioned whether it is feasible to acquire consent for such cases, especially since the purpose for data retention may change in the process. Participants also referred to extreme cases through which consent may not be acquired prior to the collection, processing, sharing and retention of data, such as in disastrous situations (e.g. earthquake) or in extreme medical cases (e.g. if a patient is in a coma), and suggested that relevant provisions are included in the Bill.

Data Disclosure

In terms of data disclosure, several participants argued that the disclosure of data can potentially be a result of blackmail and that the Bill does not provide any provisions for such extreme cases. Furthermore, participants argued that although consent may be taken from an individual for a specific purpose, such data may be used in the process for multiple other purposes by third parties and that it is very hard to prevent this. It was recommended that the Bill should incorporate provisions to prevent the disclosure of data for purposes other than the ones for which consent was given.

A participant recommended that individuals are informed of the name of the Data Processor prior to the provision of consent for the disclosure of data, which could potentially increase transparency. Many participants raised questions in regards to the protection of data which goes beyond the jurisdiction of a country. It remains unclear how data will be processed, shared, retained when it is not handled within India and several participants argued that this should be encountered within the Bill.

Data Destruction

In terms of data destruction, a participant emphasized upon the fact that the draft Privacy (Protection) Bill lacks provisions for the confirmation of the destruction of data. In particular, although the Bill guarantees the destruction of data in certain cases, it does not provide a mechanism through which individuals can be assured that their data has actually been deleted from databases. Another individual argued that since the purposes for data collection may change within the process, it is hard to determine the cases under which data can be destroyed. Since the purposes for data collection and data retention may change in time, the participant argued that it would be futile to set a specific regulatory framework for data destruction. Another participant emphasized upon the value of data and stated that although some data may appear to have no value today, it may in the future, which is why data should not be destroyed.

Data Processing

In terms of data processing, participants argued that privacy protection complications have arisen in light of the social media. In particular, they argued that social media develop and expand technologically constantly and that it is very difficult to regulate the processing of data that may be conducted by such companies. A participant emphasized the difference between (1) the processing of data when it is being read and (2) the processing of data when it is being analysed. Such a distinction should be considered within the Bill, as well as the use of data which is being processed. Many participants distinguished between the primary and secondary use of data and argued that the secondary use of data should also be included in the privacy statements of companies.

However, participants also pointed out that purposes for the collection of data may overlap and that it may be difficult to distinguish between primary and secondary purposes for data collection. A participant disagreed with this argument and stated that it is possible to distinguish between primary and secondary purposes of data collection, as long as companies are transparent about why they are collecting information and about the purpose of its processing. This argument was seconded by another participant who argued that the specific purposes for the processing of data should be incorporated in the Bill.

In brief, the following questions with regards to chapter III of the bill were raised during the meeting:

Should consent be required prior to the collection of data?
Should consent be acquired prior and after the disclosure of data?
Should the purpose of data collection be the same as the purpose for the disclosure of data?
Should an executive order or a court order be required to disclose data?
At the background of national security, anyone´s data can be under the ´suspicion list´. How can the disclosure of data be prevented in such circumstances? Non-criminals may have their data in the ´suspicion list´ and under national security, the government can disclose information; how can their information be protected in such cases?
An individual may not be informed of the collection, analysis, disclosure and retention of his/her data; how can an individual prevent the breach of his/her data?

Should companies notify individuals when they share their (individuals´) data with international third parties?

In brief, the following recommendations with regards to chapter III of the bill were raised during the meeting:

The data subject has to be informed, unless there is a model contract.
The request for consent should depend on the type of data that is to be disclosed.
Some exceptions need to be qualified (for example, in instances of medical patients different exceptions may apply).
The shared data may be considered private data (need of a relevant regulatory framework).
An international agreement should deal with the sharing of data with international third parties - incorporating such provisions in Indian law would probably be inadequate.
If any country is not data-secure, there should be an approval mechanism for the transfer of data to such a country.
India could have an export law which would monitor which data is sensitive and should not be shared with international third parties.
The problem with disclosure is when there is an exception for certain circumstances
Records should be kept on individuals who disclose data; there should be a trail of disclosure, so that there can be more transparency and accountability.
Ownership of data is a controversial issue and so is the disclosure of data; consumers give up the ownership of their data when they share it with third parties and ergo cannot control its disclosure (or non-disclosure).
´Data ownership´ should be included in the definitions of the Bill.
What is the ´quality´ of data? The definition for ´quality´ under section 11 of the Bill is not well defined and should be improved.

Discussion of “Interception of Communications”: Chapter IV

The discussion on the interception of communications started off with a statement that 70 percent of the citizens in India are enrolled on “voice”, which means that the interception of communications affects a large proportion of the population in the country. A participant asked whether the body corporate in India should be treated as a telecommunications provider and whether it should be responsible for the interception of communications. Another participant argued that the disclosure of information should be closely regulated, even when it is being intercepted for judicial purposes. Many participants agreed that data which is collected and intercepted should not be used for other purposes other than the original purpose, as well as that such information should not be shared with third parties.

Questions were raised in regards to who should authorise the interception of communications and a participant recommended that a judicial warrant should be a prerequisite to the interception of communications in India. Some participants argued that the Bill should clearly specify the instances under which communications can be intercepted, as well as the legitimate purposes for interception. It was also argued that some form of ´check and balance´ should exist for the interception of communications and that the Bill should provide mechanisms to ensure that interception is carried out in a legal way. Several participants recommended that the Privacy Commissioner is mandated to approve the interception of communications, while questions were raised in regards to the sharing of intercepted data.

Discussion on self-regulation and co-regulation

The final session of the meeting consisted of a debate on self-regulation and co-regulation. Questions were raised in regards to how self-regulation and co-regulation could be enforced. Some participants recommended the establishment of sector regulations which would mandate the various forms of surveillance, such as a separate regulation for the UID scheme. However, this recommendation was countered by participants who argued that the government would probably not approve every sector regulation and that this would leave large areas of surveillance unregulated.

The participants who supported the self-regulation framework argued that the government should not intervene in the industry and that the industry should determine its own rules in terms of handling its customers´ data. Other participants supported the co-regulatory framework and argued that companies should cooperate with the Privacy Commissioner in terms of handling customers´ data, especially since this would increase transparency on how the industry regulates the use of customers´ data. The supporters of co-regulation supplemented this statement by arguing that the members of the industry should comply with regulations and that if they do not, there should be sanctions. Such arguments were countered by supporters of self-regulation, who stated that the industry should create its own code of conduct and that the government should not regulate its work.

Furthermore, it was argued that although government regulations for the handling of data could make more sense in other countries, in India, the industry became aware of privacy far sooner than what the government did, which is why a self-regulatory regime should be established in terms of handling data. Such arguments were countered by supporters of co-regulation who argued that the industry has vested interest in self-regulation, which should be countered by public policy. This argument was also countered by participants arguing that, given the high levels of corruption in India, the Privacy Commissioner in India may be corrupt and co-regulation may end up being ineffective. Other participants questioned this argument by stating that if India lacks legal control over the use of data by companies, individuals are exposed to potential data breaches. Supporters of co-regulation stated that the Privacy Commissioner should formulate a set of practices and both the industry and the government should comply with them.

Meeting conclusion

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

For more details visit http://editors.cis-india.org/internet-governance/blog/report-on-the-2nd-privacy-round-table

Report on the 1st Privacy Round Table meeting - pdf

maria — 2013-11-07T17:01:33Z

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

Report on the 1st Privacy Round Table meeting

maria — 2013-07-30T11:11:11Z

This report entails an overview of the discussions and recommendations of the first Privacy Round Table meeting in New Delhi, on 13th April 2013.

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

In furtherance of Internet Governance multi-stakeholder Initiatives and Dialogue in 2013, the Centre for Internet and Society (CIS) in collaboration with the Federation of Indian Chambers of Commerce and Industry (FICCI), is holding a series of six multi-stakeholder round table meetings on “privacy” from April 2013 to August 2013. DSCI will be joining the CIS as a co-organizer on 20 April 2013. The CIS is undertaking this initiative as part of their work with Privacy International UK on the SAFEGUARD project.

In 2012, the CIS was a member 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 final meeting on Internet Governance proposed for October 2013.

At the roundtables the Report of the Group of Experts on Privacy and the text of the Privacy (Protection) Bill 2013 will be discussed. The discussions and recommendations from the six round table meetings will be presented at the Internet Governance meeting in October 2013.

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

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 Final Roundtable and National Meeting: 17 August 2013

This report entails an overview of the discussions and recommendations of the first Privacy Round Table meeting in New Delhi, on 13th April 2013.

Overview of Justice A P Shah Report: Purpose, Principles and Framework

The Delhi Privacy Round Table meeting began with an overview of the Report of the Group of Experts on Privacy, by the Justice AP Shah Committee. The report recommends a potential framework for privacy in India, including detailing nine privacy principles and a regulatory framework. India currently lacks a privacy legislation and during the meeting it was pointed out that the protection of personal data in India is a highly significant issue, especially in light of the UID scheme. The Report of the Group of Experts on Privacy has guided the draft of the Privacy (Protection) Bill 2013 by CIS and will potentially guide the creation of privacy legislation by the Government of India.

During the discussion on the report, a participant stated that, although a privacy legislation should be enacted in India to protect individuals´ personal data, commercial interests should not be endangered in the name of privacy. In particular, he called upon the need for the creation of a comprehensive privacy law in India and argued that although privacy should be protected, it should not have a negative impact on cloud computing, social media and on online businesses. Thus, the participant emphasized upon the creation of “light-weight” privacy legislation, which would protect individual´s right to privacy, without infringing upon the interests of the private sector.

Following the presentation of the privacy principles of the Justice AP Shah Report, the participants of the meeting made many comments on the feasibility of applying these principles within privacy legislation. In particular, a participant stated that setting a specific data retention framework is a very complicated issue, since the storage of data depends on many factors, some of which are:

The purpose of the collection of data
The purpose behind the collection of data may change within the process and may require a longer retention period, depending on the case
Data is shared with third parties and it is hard to control how long they retain the data for
Every type of data serves a different purpose and it is hard to set a universal data retention regulatory framework for all different types of data

Some participants argued that the nature of technological evolution should be considered within the privacy principles framework, in the sense that privacy is a fundamental human right to the extent that it does not disrupt other human rights and interests, such as those of companies. Many questions were raised in regards to data collection, one of them being: When data is collected for two different purposes, should an individual be eligible to single access of both types of data? Many other questions were raised in regards to co-regulation and self-regulation. In particular, a participant argued that, based on international experience, India will not be able to enforce self-regulation. On self-regulation in the United States, a participant stated that there are fifty laws which deal with certain aspects of privacy. The participant suggested that India follows the U.S. model, since self-regulation is more effective when the industry is involved, rather than when the government just imposes laws in a top-down manner. The United States enables the involvement of the industry in self-regulation and a participant recommended the same for India, as well as that the standards for co-regulation and self-regulation are approved by the Privacy Commissioner.

While identifying the clash between the right to privacy and the right to information, participants argued that safeguards are essential in a co-regulation framework, to ensure transparency. It was emphasized that India has a history of corruption and abuse of government power, which increases the probability of self-regulation in the country not being successful. India is currently facing serious problems of accountability and lack of transparency, and participants argued that a solid legal privacy framework would have to be reached, which would not require a legal amendment every other month. Participants pointed out that, within the privacy context, it is highly significant to identify where incentives lie and to regulate the Privacy Commissioner. Currently, if an officer denies access to information, it could take at least a year and a half before being authorised access to information. Participants argued that IT companies and law enforcement agencies should be enabled to access information and that the denial of access to information by the Privacy Commissioner should be regulated. In particular, participants referred to examples from the UK and questioned whether Privacy Commissioners should be considered public authorities.

The need to find a mechanism which would inform individuals of how their data is used was discussed during the meeting. A debate revolved around the question of whether the Indian government should inform an individual, once that individual´s personal information has been collected, used, processed and retained. Many participants argued that since customers decide to use their products, they should comply with the companies´ method of handling data and they should trust that the company will not misuse that data. This argument was countered by other participants, who argued that companies should be accountable as to how they handle customers´ data and that the sharing of customer data without the individual´s prior knowledge or consent could lead to data breaches and human rights violation.

The first hour of the meeting concluded that self-regulation should be considered in regards to IT companies dealing with customers´ data, but a consensus on whether companies should inform individuals of how their data is being used was not reached. Nonetheless, everyone in the meeting agreed upon the need to introduce privacy legislation in India, especially since phone tapping and the interception of communications is a widespread phenomenon in the country. India currently lacks rules for CDRs and the introduction of procedures and laws which would regulate the interception of communications in India was generally agreed upon throughout the first session of the meeting, even though the technical details of how data would be used by the private sector remained controversial.

Discussion Highlights:

The pros and cons of self-regulation and co-regulation
The national privacy principles – and how to build in insurance for technology
The role of the Privacy Commissioner
The definition of terms used in the draft Privacy (Protection) Bill 2013

Overview, explanation and discussion on the Privacy (Protection) Bill 2013

The second session of the meeting began with an overview of the Privacy (Protection) Bill 2013, which was drafted by the Centre for Internet and Society (CIS) and represents a citizen´s version of a privacy legislation for India. The Bill entails chapters on the definition of privacy, personal data, interception, surveillance and the Privacy Commissioner. The surveillance chapter was not thoroughly discussed during the meeting, as it is primarily handled from a criminal law perspective and the majority of the participants were from the IT sector.

During the meeting, the possibility of splitting the Bill was discussed. In particular, if separated, one Bill would focus on personal data and interception, while the second would focus on the criminal justice system. This would broadly be along the lines of the Canadian regime, which has two separate legislations to deal with privacy in the private and public sector.

Participants discussed the possibility of narrowing down the scope of the exceptions to the right to privacy, and made the critique that the Bill does not include any provisions for co-regulation and self-regulation. Many participants insisted that self-regulation should be included in the Bill, while other participants pointed out that the Bill does not provide protection for very several types of data, such as sexual orientation, caste and religion, which may be problematic in the future.

As the draft Privacy (Protection) Bill 2013 may possibly clash with pre-existing laws, such as the IT Act, participants recommended that new definitions be created, to ensure that the proposed privacy legislation coincides with other contradicting legislation. Many questions were raised in regards to how personal data in the public sector would be distinguished by personal data in the private sector. Other questions were raised on the harmonization of the Privacy Bill with the Right to Information Act, as well as on the redefinition of surveillance and interception, their changing nature and the difficulties of regulating them.

Many participants agreed that India´s proposed Privacy Law should meet global standards in order to attract more customers to Indian IT companies. However, a participant disagreed with this notion and argued that privacy principles generally differ depending on the social, economic, political and cultural status of a country and that the same universal privacy principles should not be imposed upon all countries. The participant argued that India should not copy global standards, but should instead create parallel legislation which would be interoperable with global standards.

The issue of to whom privacy laws would apply to was thoroughly discussed during the meeting. In particular, questions were raised in regards to whether privacy legislation would only apply to Indian individuals, or if it would also apply to international individuals using services and/or products by Indian IT companies. The data protection of customers beyond India remains vague and this was thoroughly discussed, while participants disagreed upon this issue. According to the draft Privacy (Protection) Bill 2013, consent needs to be taken from the individual, but it remains unclear whether that would be applicable to international customers. Questions were raised on how Indian IT companies would gain consent on the use of data by customers of foreign countries, especially since different laws apply to each country.

The second session of the meeting also entailed a debate on the disclosure of data to intelligence agencies by IT companies. Public authorities often request data from IT companies, on the grounds of national security and the prevention of crime and terrorism. However, questions were raised on whether companies should inform the individual prior to disclosing data to public authorities, as well as on whether certain terms, such as ´data´, should be reconceptualised.

The term ´sensitive personal data´ was analysed in the meeting and it was argued that it entails data such as sexual orientation, religion, caste and health records among others. The participants emphasized the significance of the Bill explicitly including the protection of all sensitive personal data, as well as the need to provide requirements for using personal data in both the private and public sphere. Some participants suggested that the Privacy Commissioner in India be empowered with the authority to define the term ´sensitive personal data´ and that he/she not only ensures that all such data is legally protected, but also that health data is included within the definition of the term. A participant backed up the need to closely define the term ´sensitive personal data´, by arguing that a loose definition of the term, which would not include ethnic origin, could lead to social violence and tension and thus the necessity to strictly define the term is highly essential.

Throughout the meeting it was pointed out that the Bill only deals with three aspects of privacy: personal data, surveillance and interception of communications. According to the draft Privacy (Protection) Bill 2013, an individual has the right to install surveillance technology in his/her private property, as long as that technology does not monitor other individuals in private areas. A participant asked about the balance between internet freedom and privacy, whether that should be included in the Bill and whether exemptions to privacy should be included within those lines. Other participants asked whether CDR records should be placed under privacy exemptions and whether the public disclosure of surveillance should be prohibited by the Bill. The need to redefine ´public figures´ was also emphasized in the meeting, as the threshold for public disclosure of data remains unclear. Some participants argued that the public disclosure of data should be prohibited, as this may potentially have severe effects on vulnerable groups of people, such as victims of violence. However, several participants disagreed by arguing that disclosure of data in the name of public interest should be enabled.

During the meeting several participants argued that the fact that many social networking sites and other online social media enable individuals to publicize their personal data makes it even harder to protect their online privacy. A participant emphasized the need to take freedom of expression into consideration, as it significantly enables individuals to disclose their personal data and increases the probability of online data breaches. Thus, it was argued that the draft Bill should distinguish between private data and private data being made publicly available. However, a participant argued that publicly available data depends on where it is being broadcasted. To support this argument, an example was brought forward of an individual uploading a video on YouTube and that same video being broadcasted on national television. Thus the context in which data is made publicly available is highly significant and should be outlined within the draft Privacy Bill.

The meeting proceeded to a discussion on the interception of communications and a participant claimed that a major privacy abuse is to intercept communications without a warrant or a legal order, and to request for authorisation once the interception has already being conducted. It was argued that, in any case, legal authorisation prior to any interception should be a prerequisite and should be highlighted in the draft Privacy Bill. However, another participant argued that currently, the interception of communications needs to be legally authorised within seven days and that prior authorisation should not be a prerequisite. This argument was supported by the statement that in extreme cases, the conditions may not enable prior authorisation. Many participants then questioned this practice by asking what happens in cases when authorisation is not granted within seven days after an interception and whether the agencies conducting the interception would be accountable. An assertive answer was not given, but the majority of the participants appeared to agree upon the need for legal authorisation prior to any interception.

The second session of the meeting concluded to the significance of the principles of notice and consent, which should apply in every case, prior to every interception of communications and in regards to the handling of all individuals´ personal data.

Discussion Highlights:

If the draft Privacy (Protection) Bill 2013 should be split to two separate Bills
Definition for the term ´sensitive personal data´ (to include broader categories, such as health data)
If personal data should be distinguished in the private and public sector
If the draft Privacy (Protection) Bill 2013 should comply with global privacy standards
The nuances of consumer consent
Various ways to define ´public figures´
Freedom of expression in the context of the draft Privacy (Protection) Bill 2013
The distinction between exemptions and exceptions

In depth explanation and discussions regarding the Privacy (Protection)

Bill 2013

The third and final session of the Privacy Round Table began with a discussion on data collection. In particular, a participant stated that data collection should not be defined for a specific purpose, as the purposes for data collection constantly change. This argument was supported by the statement that privacy provisions can negatively affect a company and reduce its earnings, since restricting the instances for data collection ultimately restricts the services a company can provide (such as advertising). Thus it was strongly argued that data collection should not be restricted to ´specific purposes´, because such purposes can constantly change and all such restrictions can have a negative impact on both the industry and on intelligence agencies carrying out crime investigations. Other participants countered this argument by stating that the term ´necessary information´ is too broad and vague and could create a potential for abuse, which is why data collection should be restricted to specific instances which are legally justified.

The idea that Internet users should be given the right or the option not to be tracked was emphasized during the meeting. It was suggested that the draft Privacy Bill entails provisions which would oblige IT companies and intelligence agencies to inform an individual prior to the tracking of data and to request consent. This argument was supported by the statement that IT companies should protect the interest of the people, especially in terms of data mining and analytics. All such arguments were countered by a participant who stated that the collateral damage surrounding privacy needs to be acknowledged. This statement was supported by the argument that, although it is important to safeguard individuals´ right to privacy, regulations should not infringe upon the rights and interests of companies. In particular, it was argued that a deterrent law should not be created and that it should be acknowledged that individuals choose to disclose a large amount of information.

The meeting proceeded to the discussion of the disclosure of data to third parties, and many participants argued that they should not be obliged to disclose the names of the parties they are sharing data with. It was argued that businesses prefer not to reveal the names of the third parties to which they are disclosing data to, as this would affect their competitive advantage in the market. This argument was supplemented by the statement that it would not be feasible to inform individuals every time their data is being shared and that not only would this affect a company´s competitive advantage in the market, but it would also be costly and time consuming. Instead of informing individuals every time their data is being shared, it was argued that companies are responsible for protecting their customers´ data and that those customers should trust companies with their data. A participant strongly argued that while companies are obliged to protect their customers´ data, they are not obliged to reveal the parties with whom they are sharing information with, as this would be highly inconvenient.

Many participants strongly reacted to these statements by arguing that customers should have the right to be informed of how their data is being used and with which parties it is being shared. A participant argued that a customer may not trust the parties that the company chooses to trust and thus every customer should be informed of the sharing of their data. The customer should be respected and should be informed about the sharing of his/her personal data with third parties, because when data is being outsourced, the customer can only hope that the third parties handling his/her data will not misuse it. Thus, customers ultimately lose control over their data and over their personal lives. In order to avoid potential privacy breaches and to empower individuals with control over their personal data and their lives, it was argued that companies should be obliged to inform individuals of the sharing of their data and that this provision should be included in the draft Privacy Bill.

A participant countered this argument by stating that when data is being automated, it is hard to identify the source of the data and that by providing transparency on which parties share customer data, companies would be put out of business. A participant responded to this argument by stating that companies only protect users´ data when they have an incentive to do so, which is why a liability element should be added to the Bill. Other participants supported the argument of not informing customers of the handling of their data by stating that even some of the biggest IT companies, such as Gmail, share customers data with third parties without informing individuals or gaining prior consent. Such arguments were supported by other participants who emphasized upon the futility of informing customers of the handling of their data, especially since the average customer would not understand the security setting of a server. Since the majority of online users lack the technological expertise to understand the security settings, all companies should do is provide a security assurance to their customers in regards to how their data is being used.

In terms of data retention, a participant repeated the argument that a specific regulatory framework for data retention should not be established, especially since the purpose of data collection may change within time. Thus it was emphasized that no data retention period should be included within the draft Privacy Bill.

In terms of transparency, some participants argued that IT companies should submit detailed reports on how they are using customers’ data to the Privacy Commissioner, but not to the public. In particular, many participants emphasized that a co-regulation framework should be implemented for the use of data, through which IT companies would regulate the use of data in co-operation with the Privacy Commissioner. Under a co-regulation framework, the public would be excluded from the right to receive detailed reports on how data is being used. Yet, participants emphasized that companies would be in compliance with regulations on data protection and security, which would ensure that customers´ data is not breached.

Such arguments were countered by other participants, who argued that a tremendous amount of significance lies in informing online users of what type of data is being collected, whether it is being analysed and processed, why it is being collected and with which parties it is being shared with. Such questions are considered to be crucial elements of privacy, especially since privacy means that individuals are able to share some data with some individuals, and choose not to share the same or other data with other individuals. The practices of non-disclosure supported by some participants appear to be infringing upon the core of privacy. The participants emphasized that privacy cannot be protected if companies are not accountable in regards to how they handle data.

The fact that companies can use meta-data for research purposes was mentioned in the meeting, which called upon the need to redefine the term ´data´. Questions were raised in regards to how data can be deleted once used within analytics. Some participants referred to the ´Right to be Forgotten´ debate and stated that the deletion of data, in many cases, is not feasible. A participant stated that some data is very sensitive and that companies should be responsible for deciding on how such data should be handled. Data should not be disclosed for the sake of being disclosed, but companies should decide upon the disclosure, retention and destruction of data based on how sensitive its content is. The participant emphasized that customers directly or indirectly give their consent to their data being handled by companies when they use their products and if they do not agree with the security assurances provided by the companies, then they should use a different product or service. However, this argument was countered by several participants who argued that online consumers do not always have an alternative choice and that there is a difference between the bargaining powers of consumers around the world. Some consumers may be socially pressured into using a specific product or service, or may not have an alternative option and the example of Facebook was brought up. Participants argued that given that consumers do not always have a choice to use or not use a specific online service, their data should be protected regardless of consent.

The debate on the destruction of data continued with participants arguing that companies should not have to destroy all personal data and that such restrictions should only apply to ´sensitive personal data´. The need for the redefinition of the term ´sensitive personal data´ in the draft Privacy Bill was emphasized again, as well as participants´ concern that the purpose behind the collection of data may change within the process and that the regulations which apply in such cases remain vague. In response to issues revolving around the collection of data, a participant recommended the regulation of instances under which data should not be used. In terms of consent, several participants argued that it is not rational to expect consumers to give consent for the future (indefinite) use of their data, as this may expose them to future threats which they may have not considered when granting initial consent.

The meeting proceeded to discuss the processing of data and several participants emphasized upon the need to gain consent, whilst others disagreed for the reasons mentioned above. On the disclosure of data, a participant stated that companies can be approached by law enforcement agencies for multiple purposes and that it is usually hard for companies to define the cases under which information is disclosed. Other participants disagreed with the disclosure of data when it is being collected and analysed for investigatory purposes and argued that regulations on the disclosure of data should not be applicable to intelligence agencies.

Discussion Highlights:

The different instances of data collection and consumer consent
The nuances of data sharing
The issue of consumer consent and security assurances offered by companies
The pros and cons of having a data retention regulatory framework
How transparency is incorporated into the draft Privacy Protection Bill 2013
What is needed in provisions that speak to data destruction

Meeting conclusion

The general conclusion of the meeting was that self-regulation should be encouraged, as IT companies should provide security assurances to their consumers and regulate the collection, use, analysis, sharing and retention of their data. There was some discussion on the possibility of introducing co-regulation between IT companies and the Privacy Commissioner, but most participants appeared to prefer self-regulation. All participants in the meeting agreed upon the necessity to introduce a Privacy Bill in India which would safeguard individuals´ right to privacy and other human rights. However, the debate revolved around the definition of terms used in the Bill, whether consent should be a prerequisite to the collection, use, analysis, processing and retention of data, as well as whether companies should be obliged to inform consumers of the sharing, disclosure and destruction of their data.

Following the first Privacy Round Table meeting on the Privacy (Protection) Bill 2013, the discussion between various stakeholders will continue in the next national round table meetings throughout the year 2013. Following the Delhi Privacy Round Table, corrections have been incorporated into the Privacy Protection Bill, 2013 based on participants´ feedback, concerns, comments and ideas.

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

Policy Recommendations for Surveillance Law in India and an Analysis of Legal Provisions on Surveillance in India and the Necessary & Proportionate Principles

maria — 2015-03-14T03:08:04Z

For more details visit http://editors.cis-india.org/internet-governance/blog/policy-recommendations-for-surveillance-law-in-india-and-analysis-of-legal-provisions-on-surveillance-in-india-and-the-necessary-and-proportionate-principles.pdf

Open Letter to Prevent the Installation of RFID tags in Vehicles

maria — 2013-07-12T10:59:31Z

The Centre for Internet and Society (CIS) has sent this open letter to the Society of Indian Automobile Manufacturers (SIAM) to urge them not to intall RFID tags in vehicles in India.

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

This letter is with regards to the installation of Radio Frequency Identification Tags (RFID) in vehicles in India.

On behalf of the Centre for Internet and Society, we urge you to prevent the installation of RFID tags in vehicles in India, as the legality, necessity and utility of RFID tags have not been adequately proven. Such technologies raise major ethical concerns, since India lacks privacy legislation which could safeguard individuals' data.

The proposed rule 138A of the Central Motor Vehicle Rules, 1989, mandates that RFID tags are installed in all light motor vehicles in India. However, section 110 of the Motor Vehicles Act (MV Act), 1988, does not bestow on the Central Government a specific empowerment to create rules in respect to RFID tags. Thus, the legality of the proposed rule 138A is questioned, and we urge you to not proceed with an illegal installation of RFID tags in vehicles until the Supreme Court has clarified this issue.

The installation of RFID tags in vehicles is not only currently illegal, but it also raises majors privacy concerns. RFID tags yield locational information, and thus reveal information as to an individual’s whereabouts. This could lead to a serious invasion of the right to privacy, which is at the core of personal liberty, and constitutionally protected in India. Moreover, the installation of RFID tags in vehicles is not in compliance with the privacy principles of the Report of the Group of Experts on Privacy, as, among other things, the architecture of RFID tags does not allow for consent to be taken from individuals for the collection, use, disclosure, and storage of information generated by the technology.[1]

The Centre for Internet and Society recently drafted the Privacy (Protection) Bill 2013 – a citizen's version of a possible privacy legislation for India.[2]The Bill defines and establishes the right to privacy and regulates the interception of communications and surveillance, and would include the regulation of technologies like RFID tags. As this Bill has not been enacted into law and India lacks a privacy legislation which could safeguard individuals' data, we strongly urge you to not require the mandatory installation of RFID tags in vehicles, as this could potentially violate individuals' right to privacy and other human rights.

As the proposed rule 138A, which mandates the installation of RFID tags in vehicles, is currently illegal and India lacks privacy legislation which would regulate the collection, use, sharing of, disclosure and retention of data, we strongly urge you to ensure that RFID tags are not installed in vehicles in India and to play a decisive role in protecting individuals' right to privacy and other human rights.

Thank you for your time and for considering our request.

Sincerely,

Centre for Internet and Society (CIS)

[1]. Report of the Group of Experts on Privacy: http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf

[2].Draft Privacy (Protection) Bill 2013: http://cis-india.org/internet-governance/blog/privacy-protection-bill-2013.pdf

For more details visit http://editors.cis-india.org/internet-governance/blog/open-letter-to-siam-on-rfid%20installation-in-vehicles

New Document on India's Central Monitoring System (CMS) - 2

maria — 2014-01-30T12:40:31Z

For more details visit http://editors.cis-india.org/internet-governance/blog/new-cms-doc-2

Mutual Legal Assistance Treaties (MLATs) and Cross Border Sharing of Information in India

maria — 2015-03-14T02:45:24Z

For more details visit http://editors.cis-india.org/internet-governance/blog/mlats-and-cross-border-sharing-of-information-in-india.pdf

Microsoft releases its first report on data requests by law enforcement agencies around the world

maria — 2013-07-12T12:19:31Z

In this post, the Centre for Internet and Society presents Microsoft´s report on law enforcement requests, with a focus on data requested by Indian law enforcement agencies.

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

Last week, Microsoft released its first report with data on the number of requests received from law enforcement agencies around the world relating to Microsoft online and cloud services. Microsoft´s newly released 2012 Law Enforcement Requests Report depicts the company's willingness to join the ranks of Google, Twitter and other Web businesses that publish transparency reports.

As of 30 June 2012, 137 million Indians are regular Internet users, many of which use Microsoft services including Skype, Hotmail, Outlook.com, SkyDrive and Xbox Live. Yet, until recently, it was unclear whether Indian law enforcement agencies were requesting data from our Skype calls, emails and other Microsoft services. Thus, Microsoft's release of a report on law enforcement requests is a decisive step in improving transparency in regards to how many requests for data are made by law enforcement agencies and how many requests are granted by companies. Brad Smith, an executive vice president and Microsoft´s general counsel, wrote in his blog post:

“As we continue to move forward, Microsoft is committed to respecting human rights, free expression and individual privacy.”

Microsoft 2012 Law Enforcement Requests

Democratic countries requested the most data during 2012, according to Microsoft´s report. The law enforcement agencies in the United States, the United Kingdom, Germany, France and Turkey accounted for 69 percent of the 70, 665 requests Microsoft (excluding Skype) received last year. Although India did not join the rank of the countries which made the fewest requests from Microsoft, it did not join the top-five league which accounted for the most requests, despite the country having one of the world´s highest number of Internet users.

Out of the 70,665 requests to Microsoft by law enforcement agencies around the world, only about 0.6 percent of the requests were made by Indian law enforcement agencies. These 418 requests specified 594 accounts and users, which is significantly low in comparison to the top-five and other countries, such as Taiwan, Spain, Mexico, Italy, Brazil and Australia. Indian law enforcement requests accounted for about 0.5 percent of the total 122, 015 accounts and user data that was requested by law enforcement agencies around the world.

Content data is defined by Microsoft as what customers create, communicate and store on or through their services, such as words in an e-mail or photographs and documents stored on SkyDrive or other cloud offerings. Non-content data, on the other hand, refers to basic subscriber information, such as the e-mail address, name, location and IP address captured at the time of registration. According to Microsoft´s 2012 report, the company did not disclose any content data to Indian law enforcement agencies. In fact, only 2.2 percent of requests from law enforcement agencies around the world resulted in the disclosure of content data, 99 percent of which were in response to warrants from courts in the United States. Microsoft may have not disclosed any of our content data, but 370 requests from Indian law enforcement agencies resulted in the disclosure of our non-content data. In other words, 88.5 percent of the requests by India resulted in the disclosure of e-mail addresses, IP addresses, names, locations and other subscriber information.

Out of the 418 requests made to Microsoft by Indian law enforcement agencies, only 4 were rejected (1 percent) and no data was found for 44 requests (10.5 percent). In total, Microsoft rejected the disclosure of 1.2 percent of the requests made by law enforcement agencies around the world, while data was not found for 16.8 percent of the international requests. Thus, the outcome of the data shows that the majority of the requests by Indian law enforcement agencies resulted in the disclosure of non-content data, while very few requests were rejected by Microsoft (excluding Skype). The following table summarizes the requests by Indian law enforcement agencies and their outcome:

Total number of requests	418 (0.6%)
Accounts/Users specified in requests	594 (0.5%)
Disclosure of content	0 (0%)
Disclosure of non-content data	370 (88.5%)
No data found	44 (10.5%)
Requests rejected	4 (1%)

Skype 2012 Law Enforcement Requests

Microsoft acquired Skype towards the end of 2011 and the integration of the two companies advanced considerably over the course of 2012. According to the Microsoft 2012 report, Indian law enforcement agencies made 53 requests for Skype user data and 101 requests for specified accounts on Skype. In other words, out of the total 4,715 requests for Skype user data by law enforcement agencies around the world, the requests by Indian law enforcement accounted for about 0.1 percent. 15,409 international requests were made for specified accounts on Skype, but Indian law enforcement requests only accounted for about 0.6 percent of those.

The report appears to be extremely reassuring, as it states that Skype did not disclose any content data to any law enforcement agencies around the world. That essentially means that, according to the report, that all the content we created and communicated through Skype during 2012 was kept private from law enforcement. Although Microsoft claims to not have disclosed any of our content data, it did disclose non-content data, such as SkypeID, name, email account, billing information and call detail records if a user subscribed to the Skype In/Online service, which connects to a telephone number. However, Microsoft did not report how many requests the company received for non-content data, nor how much data was disclosed and to which countries.

Microsoft reported that data was not found for 47 of India´s law enforcement requests, which represents 88.6 percent of the requests. In total, Microsoft reported that data was not found for about half the requests made by law enforcement agencies on an international level. Out of the 53 requests, Microsoft provided guidance to Indian law enforcement agencies for 10 requests. In particular, such guidance was provided either in response to a rejected request or general questions about the process for obtaining Skype user data. Yet, the amount of rejected requests for Skype user data was not included in the report and the guidance provided remains vague. The following table summarizes the requests by Indian law enforcement agencies for Skype user data and their outcome:

Total of requests	53 (0.1%)
Accounts/identifiers specified in requests	101 (0.6%)
Requests resulting in disclosure of content	0 (0%)
No data found	47 (88.6%)
Provided guidance to law enforcement	10 (18.8%)

The Centre for Internet and Society (CIS) supports the publication of Microsoft´s 2012 Law Enforcement Requests Report and encourages Microsoft (including Skype) to continue releasing such reports which can provide an insight on how much user data is being shared with law enforcement agencies around the world. In order to ensure that such reports adequately provide transparency, they should be broadened in the future to include more data, such as the amount of non-content data requests disclosed by Skype, the type of guidance provided to law enforcement agencies and the amount of requests rejected by Skype. Nonetheless, this report is a decisive first step in increasing transparency and further, more detailed reports are strongly encouraged.

For more details visit http://editors.cis-india.org/internet-governance/blog/microsoft-releases-first-report-on-data-requests-by-law-enforcement-agencies

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