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Survey on Data Protection Regime
http://editors.cis-india.org/internet-governance/blog/survey-on-data-protection-regime
<b>We request you to take part in this survey aimed at understanding how various organisations view the changes in the Data Protection Regime in the European Union. Recently the General Data Protection Regulation (EU) 2016/679 was passed, which shall replace the present Data Protection Directive DPD 95/46/EC. This step is likely to impact the way of working for many organisations. We are grateful for your voluntary contribution to our research, and all information shared by you will be used for the purpose of research only. Questions that personally identify you are not mandatory and will be kept strictly confidential. </b>
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<h4>The survey form below can also be accessed <a href="https://goo.gl/forms/61d4W0kPQ8SqNaMO2" target="_blank">here</a>.</h4>
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For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/survey-on-data-protection-regime'>http://editors.cis-india.org/internet-governance/blog/survey-on-data-protection-regime</a>
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No publisherAditi Chaturvedi and Elonnai HickokGeneral Data Protection RegulationInternet GovernanceFeaturedData ProtectionHomepage2017-02-10T10:47:00ZBlog EntryDigital AlterNatives with a Cause?
http://editors.cis-india.org/digital-natives/blog/dnbook
<b>Hivos and the Centre for Internet and Society have consolidated their three year knowledge inquiry into the field of youth, technology and change in a four book collective “Digital AlterNatives with a cause?”. This collaboratively produced collective, edited by Nishant Shah and Fieke Jansen, asks critical and pertinent questions about theory and practice around 'digital revolutions' in a post MENA (Middle East - North Africa) world. It works with multiple vocabularies and frameworks and produces dialogues and conversations between digital natives, academic and research scholars, practitioners, development agencies and corporate structures to examine the nature and practice of digital natives in emerging contexts from the Global South. </b>
<p></p>
<p><strong>I</strong><strong>ntroduction</strong></p>
<p>In the 21<sup>st</sup>
Century, we have witnessed the simultaneous growth of internet and digital
technologies on the one hand, and political protests and mobilisation on the
other. Processes of interpersonal relationships, social communication, economic
expansion, political protocols and governmental mediation are undergoing a
significant transition, across in the world, in developed and emerging
Information and Knowledge societies.</p>
<p>The young
are often seen as forerunners of these changes because of the pervasive and
persistent presence of digital and online technologies in their lives. The “
Digital Natives with a Cause?” is a research inquiry that uncovers the ways in
which young people in emerging ICT contexts make strategic use of technologies
to bring about change in their immediate environments. Ranging from personal
stories of transformation to efforts at collective change, it aims to identify
knowledge gaps that existing scholarship, practice and popular discourse around
an increasing usage, adoption and integration of digital technologies in
processes of social and political change.</p>
<p><strong>Methodology</strong></p>
<p>In 2010-11,
three workshops in Taiwan, South Africa and Chile, brought together around 80
people who identified themselves as Digital Natives from Asia, Africa and Latin
America, to explore certain key questions that could provide new insight into
Digital Natives research, policy and practice. The workshops were accompanied
by a ‘Thinkathon’ – a multi-stakeholder summit that initiated conversations
between Digital Natives, academic researchers, scholars, practitioners,
educators, policy makers and corporate representatives to share learnings on
new questions: Is one born digital or does one become a Digital Native? How do
we understand our relationship with the idea of a Digital Native? How do
Digital Natives redefine ‘change’ and how do they see themselves implementing
it? What is the role that technologies play in defining civic action and social
movements? What are the relationships
that these technology based identities and practices have with existing social
movements and political legacies? How do we build new frameworks of sustainable
citizen action outside of institutionalisation?</p>
<strong>
</strong>
<p><strong>Rationale</strong></p>
<p>One of the
knowledge gaps that this book tries to address is the lack of digital natives’
voices in the discourse around them. In the occasions that they are a part of
the discourse, they are generally represented by other actors who define the
frameworks and decide the issues which are important. Hence, more often than
not, most books around digital natives concentrate on similar sounding areas
and topics, which might not always resonate with the concerns that digital
natives and other stake-holders might be engaged with in their material and
discursive practice. The methodology of the workshops was designed keeping this
in mind. Instead of asking the digital natives to give their opinion or recount
a story about what we felt was important, we began by listening to their
articulations about what was at stake for them as e-agents of change. As a
result, the usual topics like piracy, privacy, cyber-bullying, sexting etc.
which automatically map digital natives discourse, are conspicuously absent
from this book. Their absence is not deliberate, but more symptomatic of how
these themes that we presumed as important were not of immediate concerns to
most of the participants in the workshop who are contributing to the book<strong>.</strong></p>
<strong>
</strong>
<p><strong>Structure</strong></p>
<p>The
conversations, research inquiries, reflections, discussions, interviews, and
art practices are consolidated in this four part book which deviates from the
mainstream imagination of the young people involved in processes of change. The
alternative positions, defined by geo-politics, gender, sexuality, class,
education, language, etc. find articulations from people who have been engaged
in the practice and discourse of technology mediated change. Each part
concentrates on one particular theme that helps bring coherence to a wide
spectrum of style and content.</p>
<p><strong>Book 1: To Be: Digital AlterNatives with a Cause? Download <a href="http://editors.cis-india.org/digital-natives/dnbook1/at_download/file" class="external-link">here</a></strong></p>
<strong>
</strong>
<p>The first
part, <em>To Be</em>, looks at the questions
of digital native identities. Are digital natives the same everywhere? What
does it mean to call a certain population ‘Digital Natives”? Can we also look
at people who are on the fringes – Digital Outcasts, for example? Is it
possible to imagine technology-change relationships not only through questions
of access and usage but also through personal investments and transformations?
The contributions help chart the history, explain the contemporary and give ideas
about what the future of technology mediated identities is going to be.</p>
<strong>Book 2: To Think: Digital AlterNatives with a Cause? Download <a href="http://editors.cis-india.org/digital-natives/dnbook2/at_download/file" class="external-link">here</a></strong><strong>
</strong>
<p>In the
second section, <em>To Think,</em> the
contributors engage with new frameworks of understanding the processes,
logistics, politics and mechanics of digital natives and causes. Giving fresh
perspectives which draw from digital aesthetics, digital natives’ everyday
practices, and their own research into the design and mechanics of technology
mediated change, the contributors help us re-think the concepts, processes and
structures that we have taken for granted. They also nuance the ways in which
new frameworks to think about youth, technology and change can be evolved and
how they provide new ways of sustaining digital natives and their causes.</p>
<p><strong>Book 3: To Act: Digital AlterNatives with a Cause? Download <a href="http://editors.cis-india.org/digital-natives/dnbook3/at_download/file" class="external-link">here</a></strong></p>
<p><em>To Act</em> is the third part that concentrates on stories
from the ground. While it is important to conceptually engage with digital
natives, it is also, necessary to connect it with the real life practices that
are reshaping the world. Case-studies, reflections and experiences of people
engaged in processes of change, provide a rich empirical data set which is
further analysed to look at what it means to be a digital native in emerging
information and technology contexts.</p>
<strong>
</strong>
<p><strong>Book 4: To Connect : Digital AlterNatives with a Cause? Download <a href="http://editors.cis-india.org/digital-natives/dnbook4/at_download/file" class="external-link">here</a></strong></p>
<p>The last
section, <em>To Connect</em>, recognises the
fact that digital natives do not operate in vacuum. It might be valuable to
maintain the distinction between digital natives and immigrants, but this
distinction does not mean that there are no relationships between them as
actors of change. The section focuses on the digital native ecosystem to look
at the complex assemblage of relationships that support and are amplified by
these new processes of technologised change.</p>
<p>We see this
book as entering into a dialogue with the growing discourse and practice in the
field of youth, technology and change. The ambition is to look at the digital
(alter)natives as located in the Global South and the potentials for social
change and political participation that is embedded in their interactions
through and with digital and internet technologies. We hope that the book
furthers the idea of a context-based digital native identity and practice,
which challenges the otherwise universalist understanding that seems to be the
popular operative right now. We see this as the beginning of a knowledge
inquiry, rather than an end, and hope that the contributions in the book will
incite new discussions, invoke cross-sectorial and disciplinary debates, and
consolidate knowledges about digital (alter)natives and how they work in the
present to change our futures<strong>.</strong></p>
<p><strong><a class="external-link" href="https://www.surveymonkey.com/MyAccount_Login.aspx">Click here</a> to order your copy. We invite readers to contribute reviews of an essay they found particularly interesting. Contact us: nishant@cis-india.org and fjansen@hivos.nl if you want more information, resources, or dialogues</strong></p>
<p>Nishant
Shah</p>
<p>Fieke
Jansen</p>
<p><strong>For media coverage and book reviews,</strong> <a href="http://editors.cis-india.org/digital-natives/media-coverage" class="external-link">read here</a>.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/digital-natives/blog/dnbook'>http://editors.cis-india.org/digital-natives/blog/dnbook</a>
</p>
No publishernishantSocial mediaDigital ActivismRAW PublicationsCampaignDigital NativesAgencyBlank Noise ProjectFeaturedCyberculturesFacebookPublicationsBeyond the DigitalDigital subjectivitiesBooksResearchers at Work2015-04-10T09:22:29ZBlog EntryLocating Constructs of Privacy within Classical Hindu Law
http://editors.cis-india.org/internet-governance/blog/loading-constructs-of-privacy-within-classical-hindu-law
<b>This white paper seeks to locate privacy in Classical Hindu Law, and by doing so, displace the notion that privacy is an inherently ‘Western’ concept that is the product of a modernist legal system. </b>
<h3 style="text-align: justify; ">Introduction: Conceptions of Privacy</h3>
<p style="text-align: justify; ">Because of the variance exhibited by the various legal, social, and cultural aspects of privacy, it cannot be easily defined. <a name="_ftnref1"></a> As a legal concept, privacy may form a constitutional claim, a statutory entitlement, a tortious action or an equitable remedy. As a constitutional claim, privacy is either an explicitly recognised right<a name="_ftnref2"></a> that is capable of independent enforcement,<a name="_ftnref3"></a> read into a pre-existing right <a name="_ftnref4"></a>, or located within the penumbra of a larger right.<a name="_ftnref5"></a> Statutory recognition of privacy may be afforded by both criminal and civil statutes. The offence of criminal defamation for instance, is perceived as an act of violating an individual's privacy by tarnishing his or her reputation.<a name="_ftnref6"></a> Similarly the provision of in camera trials for divorce proceedings is an illustration of a civil statute implicitly recognising privacy. <a name="_ftnref7"></a> As a tortious claim the notion of privacy is commonly understood in terms of the right against trespass of property. Equity, co-terminus with a statutory mandate or in isolation, may also be a source of privacy.</p>
<p style="text-align: justify; ">Most legal conceptions of privacy in everyday use in India originated from the English common law. Other constitutional and statutory constructions of privacy, even when not found in the common law, arise within a broader modernist system of law and justice that originated in Europe.<a name="_ftnref8"></a> During the European colonisation of India, the British (and, in a different manner, the French <a name="_ftnref9"></a>) attempted to recreate the common law in India through the establishment of a new legal and courts system, and the wholesale importation of the European idea of law<a name="_ftnref10"></a>. The very notion of privacy, as well as its legal conception, is a product of this legal modernity.<a name="_ftnref11"></a> In post-colonial societies, the argument against the right to privacy is usually premised on its perceived alien-ness - as a foreign idea brought by colonisers and imposed on a traditionalist society that favoured communitarian living over individual rights - in an effort to discredit it.<a name="_ftnref12"></a></p>
<p style="text-align: justify; ">The fallacy of this argument lies in its ignorance of the cultural plurality of privacy.<a name="_ftnref13"></a> To begin with, the idea that is connoted by the modernist notion of privacy pre-dated the introduction of common law in India. By the time of the Enlightenment, Hindu law and Islamic law were established legal systems with rich histories of jurisprudence and diverse schools of law within them, each with their own juristic techniques and rules of interpretation.<a name="_ftnref14"></a> While neither Hindu law nor Islamic law use a term that readily translates to "privacy", thereby precluding a neat transposition of meanings between them, the notion of privacy existed and can be located in both the legal traditions. In this paper, the term 'privacy' is used to describe both the modernist notion that arises from the principle of personal autonomy as well as the diverse pre-modern concepts in Hindu and Islamic jurisprudence that resemble or relate to this notion. These pre-modern concepts are diverse, and do not permit an easy analysis. For instance, the <i>Manusmriti,</i> which is a source of classical Hindu law, prohibits bathing in tanks that belong to other men.<a name="_ftnref15"></a> Additionally it prohibits the use of wells, gardens, carriages, beds, seats and houses without the owner's permission.<a name="_ftnref16"></a> These prohibitions are not driven by the imperatives of privacy alone. The rationale is that in using others' belongings one appropriates a portion of their sins.<a name="_ftnref17"></a> Hence, these privacy protections are linked to an ideal of purity. Islamic law also restricts the use or misappropriation of another's property. <a name="_ftnref18"></a> However, this prohibition is designed to protect private property; it has no ideological link to purity.</p>
<p style="text-align: justify; ">This paper attempts to locate constructs of privacy in classical Hindu law. The purpose of this exercise is not to privilege one legal system over another. Therefore, we do not intend to normatively assess the existing modernist discourse on privacy. We simply seek to establish the existence of alternate notions of privacy that pre-date modernity and the common law.</p>
<p style="text-align: justify; ">The scope of the paper is confined to locating privacy in classical Hindu law. The materials within the realm of classical Hindu law, relevant to this exercise are- the <i>sruti</i>, <i>smriti</i>, and <i>acara</i>. <i>Sruti</i> comprises of the <i>Vedas, Brahmanas, Aranyakas and the Upanishads.</i> It is considered to symbolise the spirit of Hindu law and is not the source of any positivist command as such.<a name="_ftnref19"></a> <i>Smriti</i> involves various interpretations of the <i>sruti</i>, We have however restricted ourselves to the <i>Dharmashastras </i>in this realm. Acara refers to the body of customary practices.</p>
<p style="text-align: justify; ">The review of the material at hand however, is not exhaustive. The reasons for this are twofold- <i>first</i>, given the vast expanse of Hindu jurisprudence, the literature review has been limited; <i>second, </i>there is a limited availability of reliable English translations of ancient legal treatises.</p>
<p style="text-align: justify; ">This paper is divided into two parts. The first part of this paper deals with the interface of colonisation with Hindu law and elucidates the nature of Hindu law. With the advent of colonialism, classical Hindu law was gradually substituted by a modernist legal system. <a name="_ftnref20"></a> Exploring the characteristics of modernity, the factors that contributed to the displacement of classical Hindu law will be identified.</p>
<p style="text-align: justify; ">One of the factors that contributed to the displacement was the uncertainty that characterised classical Hindu law. <a name="_ftnref21"></a> Classical Hindu law was an amalgamation of three sources, as. In an attempt to rule out the uncertainty, and the lack of positive command, the modernisation of Hindu law was brought about.<a name="_ftnref22"></a> Accordingly this part shall also examine the nature of Hindu law. Furthermore it shall determine whether the application of codified modern Hindu law, is informed by the precepts of classical Hindu law.</p>
<p style="text-align: justify; ">Having explicated the nature of Hindu law, the next part will focus on identifying instances of privacy in classical Hindu law.</p>
<p style="text-align: justify; ">Before ascertaining specific instances, however, this part will lay down a general understanding of privacy as it existed then. It will be demonstrated that regardless of the absence of an equivalent term, an expectation of privacy existed.</p>
<p style="text-align: justify; ">The specific illustrations of privacy will then be mapped out.</p>
<p style="text-align: justify; ">Given the different aspects wherein an expectation of privacy exists, there is also a possibility of competing claims. In the event that such conflicts arise, this part will attempt to resolve the same.</p>
<h3 style="text-align: justify; ">Part 1: The Transmogrification of the Nature of Hindu Law</h3>
<p> </p>
<p>The evolution of Hindu jurisprudence can be charted through three phases- classical, colonial, and modern.</p>
<p style="text-align: justify; ">In the classical phase, it was embodied by the Dharmashastra which elaborated on customary practices, legal procedure, as well as punitive measures. The Dharamshastra was accompanied by the Vedas, and acara. Whether this body of jurisprudence could be called 'law' in the strict modernist sense of the term is debatable.<a name="_ftnref23"></a></p>
<p style="text-align: justify; ">Modernity has multifarious aspects.<a name="_ftnref24"></a> However, we are concerned with modernity in the context of legal systems, for the purpose of this paper. The defining attribute of a modernist legal system is the need for positivist precepts that are codified by a legislature.<a name="_ftnref25"></a> The underlying rationale for formalised legislation is the need for certainty in law.<a name="_ftnref26"></a> Law is to be uniformly applied within the territory.<a name="_ftnref27"></a> The formalised legislation is to be enforced by hierarchized courts.<a name="_ftnref28"></a> Furthermore this codified law can be modified through provisions for amendment, if need be. <a name="_ftnref29"></a></p>
<p style="text-align: justify; ">This modernist understanding is what informs the English common law. With the advent of colonialism, common law was imported to India. The modernist legal system was confronted by plural indigenous legal systems here that were starkly different in nature.<a name="_ftnref30"></a> In the given context, the relevant indigenous system is classical Hindu law. The classical precepts were interpreted by the British. These interpretations coupled with the sources of Classical Hindu law, constituted colonial Hindu law.<a name="_ftnref31"></a></p>
<p style="text-align: justify; ">It is pertinent to note that these interpretations were undertaken through a modernist lens. The implication was the attempted modernisation of a traditional legal system.</p>
<p style="text-align: justify; ">The traditional system of Classical Hindu law did not exhibit any of the introduced features. To begin with not all of classical Hindu law was text based. <a name="_ftnref32"></a> The problem with the textual treatises was threefold. First, they were not codes enacted by a legislature, but written by various scholars. Second, they were not phrased as positivist precepts. Third, their multiplicity was accompanied with the lack of an established hierarchy between these texts.</p>
<p style="text-align: justify; ">Additionally classical Hindu law was the embodiment of <i>dharma</i>, which in itself was an amorphous concept. The constitutive elements of<i>dharma</i> were law, religious rites, duties and obligations of members of a community, as well as morality.<a name="_ftnref33"></a> These elements do not however, exhaustively define <i>dharma</i>. There exist varying definitions of <i>dharma</i>,<a name="_ftnref34"></a> and in some cases even ancient texts dealing with <i>dharma</i> fail to articulate its definition.<a name="_ftnref35"></a> This is on account of the fact that the meaning of <i>dharma</i>, varied depending on the in which it is used<a name="_ftnref36"></a> Owing to the fact that classical Hindu jurisprudence was informed by <i>dharma, </i>the former was an amalgamation of law, religion and morality. Therefore it was categorised as jurisprudence that lacked the secularity exhibited by modern positivist law.<a name="_ftnref37"></a></p>
<p style="text-align: justify; ">The co-existence of law and morality in classical Hindu law has led to various debates regarding its nature. <a name="_ftnref38"></a> Before explicating the nature of classical Hindu law, its sources must be elaborated on. As referred to, the sources are <i>sruti</i>, <i>smriti</i>,<i> </i>and<i> acara</i>.</p>
<p style="text-align: justify; ">Sruti is constituted by the <i>Vedas</i>,<i> Brahmanas</i>,<i> Aranyakas</i>,<i> </i>and<i> Upanishads</i>. Vedas are divine revelations that contain no positive precept <i>per se</i>. They are considered as the spirit of law, and believed to be the source of the rules of dharma.<a name="_ftnref39"></a> The Vedas are constituted by the Rigveda, Samveda, Yajurveda and Athravaveda.<a name="_ftnref40"></a> Based on the Vedic texts, treatises have been written elucidating religious practices. <a name="_ftnref41"></a> These texts are known as the Brahmanas.<a name="_ftnref42"></a> The Aranyakas and the Upanishads engage in philosophical enquiries of the revelation in the Vedas.</p>
<p style="text-align: justify; ">Interpretations of the Sruti by various scholars are embodied in the Smriti. The connotations of smriti are twofold. <a name="_ftnref43"></a> First, it implies knowledge transmitted through memory, as opposed to knowledge directly revealed by divinity.<a name="_ftnref44"></a> Additionally, it is the term used to collectively reference the Dharmasutras and Dharmashastra.<a name="_ftnref45"></a></p>
<p style="text-align: justify; ">Dharmasutras were essentially interpretations of revelation in only prose form, or a mixture of prose and verse. <a name="_ftnref46"></a> They detailed the duties and rituals to be carried out by a person, through the four stages, of his or her life. The duties laid down also varied depending on the caste of a person.<a name="_ftnref47"></a> They also laid down guidelines for determining punishments.<a name="_ftnref48"></a></p>
<p style="text-align: justify; ">Dharmasastras on the other hand were in the verse form. Though their subject matter coincided with the Dharmasutra in terms of domestic duties and rituals, they had a wider ambit. The Dharmasastras also dealt with subjects such as statecraft, legal procedure for adjudicating disputes. In a limited way, they marked the diversification from strictly religious precepts, from those that were legal in nature. For instance the Manusmriti was an amalgamation of law and ritual. The Yajnawalkya Samhita however, has separate parts that deal with customary practices, legal procedure, and punitive measures. The Narada Smriti, in turn deals only with legal procedure and rules of adjudication.</p>
<p style="text-align: justify; ">It is opined that in due course of time, the Aryan civilisation diversified.<a name="_ftnref49"></a> Their life and literature were no longer limited to sacrificial practices, but took on a more 'secular' form.<a name="_ftnref50"></a> The Arthashastra is evidence of such diversification.<a name="_ftnref51"></a> Unlike the Dharmashastra, it deals with strategies to be employed in governance, regulations with regard to urban planning, commercialisation of surrogacy, espionage, among other things. <a name="_ftnref52"></a></p>
<p style="text-align: justify; ">The third source of classical Hindu law, acara refers to customary practices and their authoritativeness was determined by the people.<a name="_ftnref53"></a> Their prevalence over textual tradition is contentious. <a name="_ftnref54"></a> Some opine that acara prevails over textual traditions. However, the opposing school of thought believes that customary practices prevail only if the text is unclear or disputed.<a name="_ftnref55"></a></p>
<p style="text-align: justify; ">Other sources of classical Hindu law include the <i>itihas </i>(epics such as the Mahabharata and Ramayana), and digests written by scholars.</p>
<p style="text-align: justify; ">Given the diversity of sources and its non-conformity to positivism, the nature of classical Hindu law is a heavily contested issue. For instance, with regard to the legal procedure in the Dharmashastra, Maynes opines that these rules qualified as law in the modernist sense.<a name="_ftnref56"></a> Ludo Rocher however, opines that textual treatises would not qualify as law. <a name="_ftnref57"></a> Classical Hindu law can admittedly not be identified as strictly legal or strictly moral. However, it does in a limited way recognise the distinction between legal procedure and morality.<a name="_ftnref58"></a> This is to say, it is not merely a source of rituals, but also lays down precepts that are jurisprudentially relevant.</p>
<p style="text-align: justify; ">On account of its non-conformity with characteristics of a modernist legal system, classical Hindu law was displaced by its colonial version. The British attempted to accomplish this though the process of codification.<a name="_ftnref59"></a> The colonial attempts to codify Hindu law were carried forward by the Indian government post-independence. The result was the Hindu Code Bill. The context in which this codification took place must be examined in order to better comprehend this transmogrification. Post-independence, the idea of a Uniform Civil Code had been debated.<a name="_ftnref60"></a> However it was at odds with the Nehruvian notion of secularity. <a name="_ftnref61"></a> The codification of Hindu personal law was an attempt at modernising it, without infringing on the religious freedom of Hindus.<a name="_ftnref62"></a> The idea was to confine the influence of religion to the private sphere. <a name="_ftnref63"></a> What emerged was the Hindu Code Bill, which served as the blueprint for the Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and Guardianship Act and, the Hindu Adoption and Maintenance Act. <a name="_ftnref64"></a> Colonial Hindu law was thus displaced by modern Hindu law.</p>
<p style="text-align: justify; ">As Galanter observes however, modernisation through legislations may formalise or even modify classical precepts, but cannot erase them completely. <a name="_ftnref65"></a> For instance, Section 7 of the Hindu Marriage Act, which prescribes the ceremonial requirements for a Hindu marriage, replicates those prescribed in Classical Hindu law.<a name="_ftnref66"></a> Additionally a plethora of judicial decisions have relied on or taken into consideration, precepts of ancient Hindu jurisprudence.<a name="_ftnref67"></a></p>
<p style="text-align: justify; ">It is evident thus that ancient precepts still inform modern Hindu law. Given their relevance, it would be erroneous to write off classical Hindu law as completely irrelevant in a modernist context.</p>
<h3 style="text-align: justify; ">Part II: Precepts of Privacy in Classical Hindu Law</h3>
<p style="text-align: justify; ">As referred to, we have not come across a terminological equivalent of the term 'privacy' in the course of our research. The linguistic lacuna is admittedly a hurdle in articulating the pre-modern understanding of privacy as found in Hindu jurisprudence. It is not however, an argument against the very existence of privacy. The lack of pre-modern terminology necessitates the usage of modern terms in classifying the aspects of privacy detailed in Hindu jurisprudence.</p>
<p style="text-align: justify; ">Thus, broadly speaking, the aspects of privacy we have culled out from the material at hand are those of physical space/ property, thought, bodily integrity, information, communication, and identity. As will be demonstrated these aspects overlap on occasion and are by no means an exhaustive indication. In order to contextualise these aspects within the realm of Hindu jurisprudence, they are detailed below through specific illustrations.</p>
<p align="left"><i>A. </i> <i>Privacy of physical Space/ property</i></p>
<p style="text-align: justify; ">Akin to the modern legal system that first understood privacy in proprietary terms,<a name="_ftnref68"></a> Hindu jurisprudence too accorded importance to privacy in terms of physical space. This is further illustrated by the similarity between the common law notion of a man's house being his castle,<a name="_ftnref69"></a> and the institutional primacy accorded by the Naradsmriti to the household <a name="_ftnref70"></a>. The common denominator here is the recognition of a claim to privacy against the sovereign. This claim operated against society at large as well. For instance, an individual caught trespassing on someone else's property was liable to be fined. <a name="_ftnref71"></a></p>
<p style="text-align: justify; ">These religious precepts were supplemented by those reflected in texts such as the Arthashastra. By way of illustration the house building regulations prescribed by it are largely informed by the recognition of a need for privacy. To begin with, a person's house should be built at a suitable distance from a neighbour's house, to prevent any inconvenience.<a name="_ftnref72"></a> In addition the house's doors and windows should ideally not face a neighbours doors and windows directly.<a name="_ftnref73"></a> The occupants of the house should ensure the doors and windows are suitably covered.<a name="_ftnref74"></a> Furthermore in the absence of a compelling justification, interference in a neighbour's affairs is penalised.<a name="_ftnref75"></a>Juxtaposed to religious texts that often perceived privacy as a concept driven by the imperative of purity,<a name="_ftnref76"></a> the Arthashastra is reflective of a secular connotation of privacy.</p>
<p style="text-align: justify; ">Though the household was privileged as the foundational institution in Hindu jurisprudence, claims of privacy extend beyond one's house to other physical objects as well, regardless of whether they were extensions of the household or not. For instance, both the Yajnawalkya Samhita and the Manusmriti condemn the usage of another person's property without his or her permission.<a name="_ftnref77"></a></p>
<p style="text-align: justify; ">What is noteworthy in the context of personal property is that in an era infamous for the denigration of women, Hindu jurisprudence recognised a woman's claim over property. This property, also known as Stridhana, had varied definitions. In the Yajnawalkya Samhita for instance, it is conceptualised as, "What has been given to a woman by the father, the mother, the husband or a brother, or received by her at the nuptial fire, or given to her on her husband's marriage with another wife, is denominated Stridhana or a woman's property".<a name="_ftnref78"></a> In the Manusmriti, it is defined as "What was given before the nuptial fire, what was given on the bridal procession, what was given in token of love, and what was received from her brother, mother, or father, that is called the sixfold property of a woman".<a name="_ftnref79"></a></p>
<p style="text-align: justify; ">Beyond mere cognizance of proprietary rights however, these precepts were also informed by the notion of exclusivity. Consequently, a woman's husband or his family were precluded from using her Stridhana, unless they were in dire straits. Additionally it was a sin for a woman's relatives to use her wealth even if the same was done unknowingly.<a name="_ftnref80"></a></p>
<p><i>B. </i> <i>Privacy of Thought</i></p>
<p style="text-align: justify; ">In addition to the aspect of physical space, a claim to privacy vis-a-vis the intangible realm of thought was afforded by Hindu jurisprudence. In the modern context the link between solitude and privacy has been recognised as early as 1850 by Warren and Brandeis. <a name="_ftnref81"></a> The key distinction is that in the modern era this need for solitude was seen as a function of the increasing invasion of privacy.<a name="_ftnref82"></a> In the pre-modern era however, solitude was considered essential for self-actualisation, and not as a response to the increasing invasion of the private realm. Meditation in solitude was perceived as enabling existence in the highest state of being.<a name="_ftnref83"></a> In fact a life in solitude was identified as a pre-requisite for being liberated.<a name="_ftnref84"></a></p>
<p style="text-align: justify; ">Though solitude itself is intangible, engaging in meditation would require a tangible solitary space.<a name="_ftnref85"></a> This is where the privacy of thought overlapped with the aspect of privacy of space. Accordingly, the Arthashastra prescribed that forest areas be set aside for meditation and introspection.<a name="_ftnref86"></a> It also recognised the need for ascetics to live within these spaces harmoniously, without disturbing each other.<a name="_ftnref87"></a></p>
<p style="text-align: justify; ">It is evident, that as far as the aspects of privacy were concerned, there were no watertight compartments.</p>
<p><i>C. </i> <i>Privacy with respect to bodily integrity</i></p>
<p style="text-align: justify; ">A claim to privacy of thought can only be substantively realised when complemented by the notion of privacy with respect to bodily integrity, as corporeal existence serves as a precursor to mental well-being. The inference drawn from the relevant precepts concerning this aspect is that they were largely women-centric. Arguably they were governed by a misplaced patriarchal notion that women's modesty needed to be protected. At best they could be considered as implicit references to an expectation of privacy.</p>
<p style="text-align: justify; ">The Manusmriti states, "But she who…goes to public spectacles or assemblies, shall be fined six krishnalas". <a name="_ftnref88"></a> Restrictions operating during a woman's menstruation were twofold. Her family was prohibited from seeing her. Additionally cohabitation with such a woman was also forbidden.<a name="_ftnref89"></a> It should be pointed out that that these constructs had little to do with a woman's expectation of privacy. They were forbidden due to the attached implications of impurity that would vest in the defaulter. A woman's autonomy with regard to her body was not regarded as a factor meriting consideration.</p>
<p style="text-align: justify; ">However, there were constructs, albeit limited, which were more egalitarian in their approach and did recognise her autonomy. They established that women do have an expectation of privacy in terms of bodily integrity. Sexual assault was considered as an offence. <a name="_ftnref90"></a> Evidence of this is found in the Yajnawalkya Samhita which states, "If many persons know a woman against her will, each of them should be made to pay a fine of twenty four panas".<a name="_ftnref91"></a> In addition, the Arthashastra vested in commercial sex workers the right to not be held against their will.<a name="_ftnref92"></a> Further it expressly states that even a commercial sex worker cannot be forced to engage in sexual intercourse.<a name="_ftnref93"></a></p>
<p style="text-align: justify; ">Women could make a claim to privacy not only against society at large, but also against their husbands. Ironically, while our contemporary legal system (i.e., the Indian legal system) fails to criminalise marital rape, the <i>Manusmriti</i> considered it an offence. <a name="_ftnref94"></a> Additionally, husbands were also prohibited from looking at their wives when the latter were in a state of relaxation.</p>
<p style="text-align: justify; "><i>D. </i> <i>Privacy of Information and Communication</i></p>
<p style="text-align: justify; ">While the three aspects explicated above were by and large restricted to the individual, the privacy of information and communication has been largely confined by Hindu jurisprudence to the realm of the sovereign. Both the Manusmriti and the Arthashastra acknowledge the importance of a secret council that aids the king in deliberations.<a name="_ftnref95"></a> These deliberations are to be carried on in a solitary place that was well-guarded.<a name="_ftnref96"></a> The decisions made in these deliberations are to be revealed on a need to know basis. <a name="_ftnref97"></a> That is to say, only persons concerned with the implementation of these decisions are to be informed. The Manusmriti also provides for private deliberation by the king on matters not involving governance. It provides, "At midday or midnight , when his mental and bodily fatigues are over, let him deliberate, either with himself alone or with his ministers on virtue, pleasure, and wealth".</p>
<p style="text-align: justify; ">Apart from governance, privacy of information also pertained to certain types of documents that were considered private in nature. These are documents that involve transactions such as partition, giving of a gift, purchase, pledge and debt. What is interesting about this precept is the resemblance it bears to the common law notion of privity. The common characteristic of the documents referred to, is that they concerned transactions undertaken between two or more persons. The rights or obligations arising from these transactions were confined to the signatories of these documents. It could be possible that the privatisation of these documents was aimed at guarding against disruption of transactions via third party intrusions.</p>
<p style="text-align: justify; ">The limited reference to private communications is found within the realm of governance, within the context of privacy of information. The only illustration of this that we have come across is the precept in the Arthashastra that requires intelligence to be communicated in code. <a name="_ftnref98"></a></p>
<p><i>E. </i> <i>Privacy of Identity </i></p>
<p style="text-align: justify; ">The final aspect that warrants detailing is the privacy of identity. The notion of privacy of identity can be understood in two ways. The first deals with protection of personal information that could be traced back to someone, thus revealing his or her identity. The second recognises the component of reputation. It seeks to prevent the misappropriation or maligning of a person's identity and thus reputation. In ancient Hindu jurisprudence there is evidence of recognition of the latter. An illustration of the same is offered by the precept which states "For making known the real defects of a maiden, one should pay a fine of a hundred panas".<a name="_ftnref99"></a> Another precept prescribes that false accusations against anyone in general are punishable by a fine. Additionally, there is also a restriction operating against destroying or robbing a person of his or her virtue.<a name="_ftnref100"></a> In the modern context, the above would be understood under the rubric of defamation. These precepts are indicative of the fact that defamation was recognised as an offence way before the modern legal system afforded cognizance to the same.</p>
<h3 style="text-align: justify; ">Conclusion</h3>
<p style="text-align: justify; ">The dominant narrative surrounding the privacy debate in India is that of the alien-ness of privacy. This paper has attempted to displace the notion that privacy is an inherently 'Western' concept that is the product of a modernist legal system. No doubt the common understanding of the legal conception of privacy is informed by modernity. In fact, the research conducted in support of this paper has been synthesised from privacy information through a modernist lens. The fact still remains however, that privacy is an amorphous context, and its conceptions vary across cultures.</p>
<p style="text-align: justify; ">To better appreciate the relevance of Classical Hindu law in a modernist context, the nature of Hindu law must be examined first. While Hindu jurisprudence might not qualify as law in the positivist sense of the term, its precepts continue to inform India's statues and judicial pronouncements.</p>
<p style="text-align: justify; ">Privacy is subjective and eludes a straitjacketed definition. On occasion this elusiveness is a function of its overlapping and varying aspects. At other times it stems from a terminological lacuna that complicates the explication of privacy. These impediments notwithstanding, it is abundantly clear that the essence of privacy is reflected in Hindu culture and jurisprudence. This may give pause to thought to those who seek to argue that 'collectivist' cultures do not value privacy or exhibit the need for it.</p>
<div></div>
<div>
<hr />
<div id="ftn1">
<p><a name="_ftn1"></a> Daniel J. Solove, <i>A Taxonomy of Privacy</i>, University of Pennsylvania Law Review, Vol. 154(3), January 2006.</p>
</div>
<div id="ftn2">
<p><a name="_ftn2"></a> <i>Id.</i></p>
</div>
<div id="ftn3">
<p style="text-align: justify; "><a name="_ftn3"></a> Upendra Baxi, <i>Who Bothers About the Supreme Court: The Problem of Impact of Judicial Decisions</i>, available at http://clpr.org.in/wp-content/uploads/2013/08/whobothersabouttheSupremeCourt.pdf (Last visited on December 23, 2014) (The enforceability of rights often sets their individual enjoyment apart from their jurisprudential value); In India, the reading of privacy into Article 21 has not resulted in a mechanism to enforce a standalone right to privacy, See R.H. Clark, Constitutional Sources of the Penumbral Right to Privacy, available at http://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=2046&context=vlr (Last visited on December 23, 2014) (In the United States, the right to privacy was located in the penumbra of the right to personal autonomy).</p>
</div>
<div id="ftn4">
<p><a name="_ftn4"></a> See PUCL v. Union of India, AIR 1997 SC 568.</p>
</div>
<div id="ftn5">
<p><a name="_ftn5"></a> See Griswold v. Connecticut, 381 U.S. 479 (1965); Lawrence v. Texas, 539 U.S. 558 (2003).</p>
</div>
<div id="ftn6">
<p><a name="_ftn6"></a> See The Indian Penal Code, 1850, Section 499.</p>
</div>
<div id="ftn7">
<p><a name="_ftn7"></a> See The Hindu Marriage Act, 1955 Section 22; The Special Marriage Act, 1954, Section 33.</p>
</div>
<div id="ftn8">
<p style="text-align: justify; "><a name="_ftn8"></a> Bhairav Acharya & Vidushi Marda, <i>Identifying Aspects of Privacy in Islamic Law</i>, available at http://cis-india.org/internet-governance/blog/identifying-aspects-of-privacy-in-islamic-law (Last visited on December 23, 2014).</p>
</div>
<div id="ftn9">
<p><a name="_ftn9"></a> See Robert Lingat, The Classical Law of India (1973).</p>
</div>
<div id="ftn10">
<p style="text-align: justify; "><a name="_ftn10"></a> Donald R. Davis, Jr., The Spirit of Hindu Law (2010) (This importation must be viewed against the backdrop of the characteristics of the era of Enlightenment wherein primacy was accorded to secular reason and the positivist conception of law. Davis observes "One cannot deny the increasing global acceptance of a once parochial notion of law as rules backed by sanctions enforced by the state. This very modern, very European notion of law is not natural, not a given; it was produced at a specific moment in history and promulgated systematically and often forcibly through the institutions of what we now call the nation-state, especially those nations that were also colonial powers.)"; But see Alan Gledhill, <i>The Influence of Common Law and Equity on Hindu Law Since 1800</i>, available at http://www.jstor.org/stable/755588 (Last visited on December 23, 2014); Werner Menski, <i>Sanskrit Law: Excavating Vedic Legal Pluralism</i>, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1621384 (Last visited on December 23, 2014) (However, this replacement of traditional legal systems did not extend to personal laws. Personal laws in India continue to be community-based, sometimes un-codified, draw from a diverse set of simultaneously applicable sources and traditional schools of jurisprudence.).</p>
</div>
<div id="ftn11">
<p><a name="_ftn11"></a> <i>Supra </i> note 8, Acharya & Marda.</p>
</div>
<div id="ftn12">
<p style="text-align: justify; "><a name="_ftn12"></a> Privacy International, <i>A New Dawn: Privacy in Asia</i>, available at https://www.privacyinternational.org/reports/a-new-dawn-privacy-in-asia/background (Last visited on December 28, 2013) ("It is only recently that the debate around privacy was stuck in this "collectivist" vs. "individualistic" cultural discourse…we discovered that privacy concerns and the need for safeguards were often embedded deeply in a nation, and <i>not just as a response to a modern phenomenon.</i>").</p>
</div>
<div id="ftn13">
<p style="text-align: justify; "><a name="_ftn13"></a> Privacy International, <i>A New Dawn: Privacy in Asia</i>, available at https://www.privacyinternational.org/reports/a-new-dawn-privacy-in-asia/background (Last visited on December 28, 2013)</p>
</div>
<div id="ftn14">
<p style="text-align: justify; "><a name="_ftn14"></a> J. Duncan M. Derrett, <i>The Administration of Hindu Law by the British</i>, available at http://www.jstor.org/stable/177940 (Last visited on December 23, 2014).</p>
</div>
<div id="ftn15">
<p><a name="_ftn15"></a> Manusmriti, Chapter IV, 201.</p>
</div>
<div id="ftn16">
<p><a name="_ftn16"></a> Manusmriti, Chapter IV, 202.</p>
</div>
<div id="ftn17">
<p><a name="_ftn17"></a> <i>Id.</i></p>
</div>
<div id="ftn18">
<p><a name="_ftn18"></a> Wael B. Hallaq, An Introduction to Islamic Law 31 (2009).</p>
</div>
<div id="ftn19">
<p><a name="_ftn19"></a> Donald R. Davis, Jr., The Spirit of Hindu Law (2010).</p>
</div>
<div id="ftn20">
<p style="text-align: justify; "><a name="_ftn20"></a> Marc Galanter, <i>The Displacement of Traditional Law in Modern India</i>, Journal of Social Issues, Vol. XXIV, No. 4, 1968.</p>
</div>
<div id="ftn21">
<p><a name="_ftn21"></a> <i>Id.</i></p>
</div>
<div id="ftn22">
<p><a name="_ftn22"></a> <i>Supra</i> note 20, Galanter.</p>
</div>
<div id="ftn23">
<p><a name="_ftn23"></a> <i>Supra </i> note 10, Menski.</p>
</div>
<div id="ftn24">
<p><a name="_ftn24"></a> Werner Menski, Hindu Law: Beyond Tradition and Modernity (2003).</p>
</div>
<div id="ftn25">
<p><a name="_ftn25"></a> <i>Id.</i></p>
</div>
<div id="ftn26">
<p><a name="_ftn26"></a> Ashcroft as cited in Werner Menski, Hindu Law: Beyond Tradition and Modernity (2003).</p>
</div>
<div id="ftn27">
<p><a name="_ftn27"></a> <i>Supra</i> note 20, Galanter.</p>
</div>
<div id="ftn28">
<p><a name="_ftn28"></a> <i>Id.</i></p>
</div>
<div id="ftn29">
<p><a name="_ftn29"></a> <i>Id.</i></p>
</div>
<div id="ftn30">
<p><a name="_ftn30"></a> <i>Id</i> .</p>
</div>
<div id="ftn31">
<p><a name="_ftn31"></a> <i>Id</i> .</p>
</div>
<div id="ftn32">
<p><a name="_ftn32"></a> <i>Id</i> .</p>
</div>
<div id="ftn33">
<p><a name="_ftn33"></a> <i>Supra</i> note 19, Davis.</p>
</div>
<div id="ftn34">
<p><a name="_ftn34"></a> <i>Id.</i></p>
</div>
<div id="ftn35">
<p><a name="_ftn35"></a> <i>Id.</i></p>
</div>
<div id="ftn36">
<p><a name="_ftn36"></a> <i>Id</i> .</p>
</div>
<div id="ftn37">
<p><a name="_ftn37"></a> <i>Id</i> .</p>
</div>
<div id="ftn38">
<p><a name="_ftn38"></a> J. Duncan M. Derrett, Introduction to Modern Hindu Law (1963); <i>Supra</i> note 19, Davis.</p>
</div>
<div id="ftn39">
<p><a name="_ftn39"></a> <i>Supra</i> note 9, Lingat.</p>
</div>
<div id="ftn40">
<p><a name="_ftn40"></a> <i>Id.</i></p>
</div>
<div id="ftn41">
<p><a name="_ftn41"></a> <i>Id.</i></p>
</div>
<div id="ftn42">
<p><a name="_ftn42"></a> <i>Id.</i></p>
</div>
<div id="ftn43">
<p><a name="_ftn43"></a> <i>Id.</i></p>
</div>
<div id="ftn44">
<p><a name="_ftn44"></a> <i>Id.</i></p>
</div>
<div id="ftn45">
<p><a name="_ftn45"></a> <i>Id.</i></p>
</div>
<div id="ftn46">
<p><a name="_ftn46"></a> <i>Id.</i></p>
</div>
<div id="ftn47">
<p><a name="_ftn47"></a> <i>Id.</i></p>
</div>
<div id="ftn48">
<p><a name="_ftn48"></a> <i>Id.</i></p>
</div>
<div id="ftn49">
<p><a name="_ftn49"></a> John D. Mayne, Hindu Law (1875).</p>
</div>
<div id="ftn50">
<p><a name="_ftn50"></a> <i>Id.</i></p>
</div>
<div id="ftn51">
<p><a name="_ftn51"></a> <i>Supra </i> note 49, Mayne.</p>
</div>
<div id="ftn52">
<p><a name="_ftn52"></a> <i>Id.</i></p>
</div>
<div id="ftn53">
<p><a name="_ftn53"></a> <i>Supra </i> note 19, Davis.</p>
</div>
<div id="ftn54">
<p><a name="_ftn54"></a> <i>Id.</i></p>
</div>
<div id="ftn55">
<p><a name="_ftn55"></a> <i>Id.</i></p>
</div>
<div id="ftn56">
<p><a name="_ftn56"></a> <i>Supra </i> note 49, Mayne.</p>
</div>
<div id="ftn57">
<p><a name="_ftn57"></a> Ludo Rocher, Studies in Hindu Law and Dharamasastra (2012).</p>
</div>
<div id="ftn58">
<p style="text-align: justify; "><a name="_ftn58"></a> For instance the Yajnawalkya Samhita has clear delineations in its chapters, segregating customary practices, legal procedure and punitive measures.</p>
</div>
<div id="ftn59">
<p style="text-align: justify; "><a name="_ftn59"></a> Madhu Kishwar, <i>Codified Hindu Law: Myth and Reality</i>, available at http://www.jstor.org/stable/4401625 (Last visited on December 23, 2014).</p>
</div>
<div id="ftn60">
<p><a name="_ftn60"></a> <i>Id</i> .</p>
</div>
<div id="ftn61">
<p><a name="_ftn61"></a> <i>Supra </i> note 59.</p>
</div>
<div id="ftn62">
<p><a name="_ftn62"></a> <i>Id.</i></p>
</div>
<div id="ftn63">
<p><a name="_ftn63"></a> <i>Id.</i></p>
</div>
<div id="ftn64">
<p><a name="_ftn64"></a> <i>Id.</i></p>
</div>
<div id="ftn65">
<p><a name="_ftn65"></a> <i>Supra</i> note 20, Galanter.</p>
</div>
<div id="ftn66">
<p><a name="_ftn66"></a> See The Hindu Marriage Act, 1955, Section 7.</p>
</div>
<div id="ftn67">
<p style="text-align: justify; "><a name="_ftn67"></a> Saroj Rani v. Sudarshan Kumar Chadda, AIR 1984 SC 1562 (reflected the importance accorded by classical Hindu law to marital stability); M Govindaraju v. K Munisami Goundu 1996 SCALE (6) 13(The Supreme Court looked to ancient Shudra custom to adjudicate on a matter of adoption); Rajkumar Patni v. Manorama Patni, II (2000) DMC 702 (The Madhya Pradesh High Court, relied on the definition of Stridhan by Manu.).</p>
</div>
<div id="ftn68">
<p><a name="_ftn68"></a> <i>Supra</i> note 8, Acharya & Marda.</p>
</div>
<div id="ftn69">
<p><a name="_ftn69"></a> Semayne v. Gresham, 77 Eng. Rep. 194, 195; 5 Co. Rep. 91, 195 (K.B. 1604).</p>
</div>
<div id="ftn70">
<p style="text-align: justify; "><a name="_ftn70"></a> As cited in Julius Jolly, The Minor Law Books 164 (1889), ("A householder's house and field are considered as the two fundamentals of his existence. Therefore let not the king upset either of them; for that is the root of the householders").</p>
</div>
<div id="ftn71">
<p style="text-align: justify; "><a name="_ftn71"></a> Manmath Nath Dutt, The Dharamshastra - Hindu Religious Codes, Volume 1, 103 (1978) (Yajnawalkya Samhita, Chapter II 235-236: "He…who opens the doors of a closed house [without the permission of the master]…should be punished with fifty panas. Such is the law.").</p>
</div>
<div id="ftn72">
<p style="text-align: justify; "><a name="_ftn72"></a> L.N. Rangarajan, Kautalya: The Arthashastra 371 (1992) ("O be built at a suitable distance from the neighbours property so as not to cause inconvenience to the neighbour").</p>
</div>
<div id="ftn73">
<p style="text-align: justify; "><a name="_ftn73"></a> <i>Id</i> ., ("…doors and windows shall be made so as not to cause annoyance by facing a neighbour's door or window directly").</p>
</div>
<div id="ftn74">
<p style="text-align: justify; "><a name="_ftn74"></a> <i>Supra </i> note 72, Rangarajan, ("when the house is occupied the doors and windows shall be suitably covered").</p>
</div>
<div id="ftn75">
<p><a name="_ftn75"></a> <i> Id.</i>, 376.</p>
</div>
<div id="ftn76">
<p><a name="_ftn76"></a> See Manusmriti, Chapter IV, 201-202.</p>
</div>
<div id="ftn77">
<p style="text-align: justify; "><a name="_ftn77"></a> <i>Supra </i> note 71, Dutt, 27 (Yajnawalkya Samhita, Chapter I , 160: "One should avoid the bed, seat, garden-house and the conveyance belonging to another person.").</p>
</div>
<div id="ftn78">
<p><a name="_ftn78"></a> <i>Supra </i> note 71, Dutt, 89 (Yajnawalkya Samhita, Chapter II, 146).</p>
</div>
<div id="ftn79">
<p><a name="_ftn79"></a> Manusmriti, Chapter IX, 194.</p>
</div>
<div id="ftn80">
<p><a name="_ftn80"></a> <i>Supra </i> note 71, Dutt Volume 2, 276 (Angiras Samhita, Chapter I, 71).</p>
</div>
<div id="ftn81">
<p><a name="_ftn81"></a> Samuel D. Warren & Louis D. Brandeis, <i>The Right to Privacy</i>, Harvard Law Review, Vol. IV, December 15, 1890, No.5.</p>
</div>
<div id="ftn82">
<p><a name="_ftn82"></a> <i>Id.</i></p>
</div>
<div id="ftn83">
<p style="text-align: justify; "><a name="_ftn83"></a> Manusmriti, Chapter IV, 258; <i>Supra </i>note 71, Dutt, 134 (Yajnawalkya Samhita Chapter III, 111: "Having withdrawn the mind, understanding, retentive faculty and the senses from all their objects, the soul, the lord…should be meditated upon.").</p>
</div>
<div id="ftn84">
<p><a name="_ftn84"></a> Manu Chapter VI, 44.</p>
</div>
<div id="ftn85">
<p style="text-align: justify; "><a name="_ftn85"></a> <i>Supra </i> note 71, Dutt, 186 (Harita Chapter VII, 6: "Situated in a solitary place with a concentrated mind, he should, till death mediate on the <i>atman</i>, that is situated both in the mind and the external world… ").</p>
</div>
<div id="ftn86">
<p><a name="_ftn86"></a> <i>Supra </i> note 72, Rangarajan, (Arthashastra, 2.2.2).</p>
</div>
<div id="ftn87">
<p><a name="_ftn87"></a> Supra note72, Rangarajan, (Arthashastra 3.16.33-36).</p>
</div>
<div id="ftn88">
<p><a name="_ftn88"></a> Manusmriti IX, 84</p>
</div>
<div id="ftn89">
<p><a name="_ftn89"></a> <i>Supra </i> note 71, Dutt, Volume 2, 350 (Samvarta Samhita,163).</p>
</div>
<div id="ftn90">
<p><a name="_ftn90"></a> <i>Supra</i> note 71, Dutt, Volume 1, 112 (Yajnawalkya Samhita, Chapter II, 291).</p>
</div>
<div id="ftn91">
<p><a name="_ftn91"></a> <i>Supra</i> note 71, Dutt, Volume 1, 113 (Yajnawalkya Samhita, Chapter II, 294).</p>
</div>
<div id="ftn92">
<p><a name="_ftn92"></a> <i>Supra </i> note 72, Ranjarajan (Arthashastra 2.27.14).</p>
</div>
<div id="ftn93">
<p><a name="_ftn93"></a> Supra note 72, Rangarajan (Arthashastra 4.13.38).</p>
</div>
<div id="ftn94">
<p><a name="_ftn94"></a> Manusmriti, X, 62</p>
</div>
<div id="ftn95">
<p><a name="_ftn95"></a> Manusmriti Part VII, <i>Supra </i>note 101, Rangarajan (Arthashastra 1.15.2-5, 1.15.13-17).</p>
</div>
<div id="ftn96">
<p style="text-align: justify; "><a name="_ftn96"></a> <i>Supra </i> note 72, Rangarajan (Arthashastra 1.15.2-5 : The scrutiny of governance related affairs was take place in a secluded and well-guarded spot, where it could not be overheard. No unauthorised person was allowed to approach these meetings.).</p>
</div>
<div id="ftn97">
<p style="text-align: justify; "><a name="_ftn97"></a> <i>Supra </i> note 72, Rangarajan (Arthashastra 1.15.13-17: "…Only those who have to implement it should know when the work is begun or when it has been completed.").</p>
</div>
<div id="ftn98">
<p><a name="_ftn98"></a> <i>Supra</i> note 72, Rangarajan.</p>
</div>
<div id="ftn99">
<p><a name="_ftn99"></a> <i>Supra</i> note 71, Dutt, Volume 1, 112 (Yajnawalkya Samhita, Chapter II, 292).</p>
</div>
<div id="ftn100">
<p><a name="_ftn100"></a> <i>Supra </i> note 71, Dutt, Volume 4, 919 (Vishnu Samhita, Chapter LII, 16).</p>
</div>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/loading-constructs-of-privacy-within-classical-hindu-law'>http://editors.cis-india.org/internet-governance/blog/loading-constructs-of-privacy-within-classical-hindu-law</a>
</p>
No publisherAshna Ashesh and Bhairav AcharyaFeaturedHomepageInternet GovernancePrivacy2015-01-01T13:56:04ZBlog EntryNational IPR Policy Series : CIS Comments to the First Draft of the National IP Policy
http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy
<b>The Department of Industrial Policy and Promotion, Government of India invited comments on the First Draft of India's National IPR Policy. The Centre for Internet & Society (CIS) made this submission. The comments were prepared by Nehaa Chaudhari, Pranesh Prakash and Anubha Sinha. We also thank our intern, Varnika Chawla for her assistance.</b>
<p style="text-align: justify; ">The press release from the Department of Industrial Policy and Promotion in which it invited comments is <a class="external-link" href="http://www.dipp.nic.in/English/acts_rules/Press_Release/pressRelease_IPR_Policy_30December2014.pdf">here</a>. The First Draft of India's National IPR Policy is <a class="external-link" href="http://www.dipp.nic.in/English/Schemes/Intellectual_Property_Rights/IPR_Policy_24December2014.pdf">here</a>. Click to <a href="http://editors.cis-india.org/a2k/blogs/cis-comments_first-draft-of-national-ipr-stategy.pdf" class="external-link">view the PDF</a>. Note: <i>In some places there might be references to paragraph/page numbers (of the document) and for that readers should refer to the PDF since the formatting in HTML is slightly different</i>.</p>
<hr />
<ol type="I"> </ol>
<h2 align="JUSTIFY">Preliminary</h2>
<ol>
<li style="text-align: justify; ">This submission presents comments from the Centre for Internet and Society, India (<b>"CIS"</b>)<a href="#sdfootnote1sym" name="sdfootnote1anc"><sup>1</sup></a> on the proposed National Intellectual Property Rights Policy <b>("the Policy") </b>to the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India.<b>("DIPP"</b>).</li>
<li>This submission is made in response to the requests and suggestions from stakeholders sought by the DIPP in its Press Release. <a href="#sdfootnote2sym" name="sdfootnote2anc"><sup>2</sup></a> </li>
<li>
<p align="JUSTIFY">CIS commends the DIPP for this initiative, and appreciates the opportunity to provide comments on the National IPR Policy. CIS' comments are as stated hereafter.</p>
<hr />
</li>
</ol> <ol type="I"> <ol> </ol></ol>
<h3 align="JUSTIFY">About CIS</h3>
<ol type="I">
<li style="text-align: justify; ">CIS<a href="#sdfootnote3sym" name="sdfootnote3anc"><sup>3</sup></a> is a non-profit research organization that works on among others, issues of intellectual property law reform,<a href="#sdfootnote4sym" name="sdfootnote4anc"><sup>4</sup></a> openness,<a href="#sdfootnote5sym" name="sdfootnote5anc"><sup>5</sup></a> privacy, freedom of speech and expression and internet governance,<a href="#sdfootnote6sym" name="sdfootnote6anc"><sup>6</sup></a> accessibility for persons with disabilities,<a href="#sdfootnote7sym" name="sdfootnote7anc"><sup>7</sup></a> and engages in academic research on digital humanities<a href="#sdfootnote8sym" name="sdfootnote8anc"><sup>8</sup></a> and digital natives. <a href="#sdfootnote9sym" name="sdfootnote9anc"><sup>9</sup></a></li>
<li style="text-align: justify; ">CIS is an accredited Observer<a href="#sdfootnote10sym" name="sdfootnote10anc"><sup>10</sup></a> at the World Intellectual Property Organization ("WIPO"), enabling us to attend formal meetings of member states and participate in debates and consultations on various issues. CIS has been attending meetings of the WIPO Standing Committee on Copyright and Related Rights since 2010. At these sessions, CIS has actively participated through various interventions, emphasizing the adoption of an approach balancing the rights holders' perspective with public interest. CIS has also attended sessions of some other committees at WIPO, made interventions wherever applicable, produced reports of these meetings, and profiled the work of other non-governmental organizations engaging in similar work on intellectual property law and policy reform. <a href="#sdfootnote11sym" name="sdfootnote11anc"><sup>11</sup></a></li>
<li style="text-align: justify; ">CIS undertakes research in other fields of intellectual property, in addition to WIPO-related work. Over the past five years since our inception, some of our key research has included analyses of intellectual property issues of the proposed Indo-EU Free Trade Agreement<a href="#sdfootnote12sym" name="sdfootnote12anc"><sup>12</sup></a> and other free trade agreements,<a href="#sdfootnote13sym" name="sdfootnote13anc"><sup>13</sup></a> the US Special 301 Report,<a href="#sdfootnote14sym" name="sdfootnote14anc"><sup>14</sup></a> the (2010) amendment to the Copyright Act, 1957,<a href="#sdfootnote15sym" name="sdfootnote15anc"><sup>15</sup></a> the (draft) Science, Technology and Innovation Policy,<a href="#sdfootnote16sym" name="sdfootnote16anc"><sup>16</sup></a> parallel importation, <a href="#sdfootnote17sym" name="sdfootnote17anc"><sup>17</sup></a> the (draft) Patent Manual and the subsequent Guidelines for Computer Related Inventions,<a href="#sdfootnote18sym" name="sdfootnote18anc"><sup>18</sup></a> royalty caps,<a href="#sdfootnote19sym" name="sdfootnote19anc"><sup>19</sup></a> copyright exceptions and limitations for education, <a href="#sdfootnote20sym" name="sdfootnote20anc"><sup>20</sup></a> and the preparation of the India Report for the Consumers International IP Watch List.<a href="#sdfootnote21sym" name="sdfootnote21anc"><sup>21</sup></a> </li>
</ol>
<h3>Structure of this Submission</h3>
<ol>
<li>
<p align="JUSTIFY">This submission is divided into 4 parts. The first<i> </i>part gives a preliminary overview of the suggestions submitted by CIS. The second part highlights the principles that should be followed in the formulation of a National IPR Policy, the third part provides detailed comments and recommendations for the National IPR Policy and the last part provides certain concluding remarks.</p>
</li>
</ol>
<h2 align="JUSTIFY">Principles</h2>
<ol>
<li>
<p align="JUSTIFY">The characterization of intellectual property rights may be two-fold - first<i>,</i> at their core, intellectual property rights, are temporary monopolies granted to <i>inter alia,</i> authors and inventors; and <i>second, </i>they are a tool to ensure innovation, social, scientific and cultural progress and further access to knowledge. This dual nature and purpose of intellectual property protection is particularly critical in developing economies such as India. Excessive intellectual property protection could result in stunted innovation and negatively impact various stakeholders.<a href="#sdfootnote22sym" name="sdfootnote22anc"><sup>22</sup></a> It is therefore our submission that the development of the IPR Policy be informed by broader principles of fairness and equity, balancing intellectual property protections with limitations and exceptions/user rights such as those that promote freedom of expression, research, education and access to medicines, cultural rights, data mining, use of governmental works, etc.</p>
</li>
</ol> <ol type="I"> </ol>
<h2>Detailed Comments</h2>
<ol type="I"> </ol> <ol>
<li>
<p align="JUSTIFY">This section will detail CIS' submissions on various aspects of the National IPR Policy. Submissions have been categorised thematically.</p>
</li>
</ol> <ol type="I"> <ol> </ol></ol>
<h3>On the Vision</h3>
<ol>
<li style="text-align: justify; ">It is submitted that the Vision of the National IPR Policy (<b>"Vision"</b>) in encouraging growth for the 'benefit of all' and in accepting the philosophy that knowledge owned 'is transformed into knowledge shared' <a href="#sdfootnote23sym" name="sdfootnote23anc"><sup>23</sup></a> is commendable.However, the vision is at odds with the methods proposed in the document. True advancement in science and technology, arts and culture, protection of traditional knowledge as well as bio-diverse resources and the true sharing of knowledge would be impaired by a system centred only around the development and maximization of intellectual property.</li>
<li style="text-align: justify; ">An attractive social culture would be one where citizens had access to a cornucopia of ideas and information, thereby fostering an environment of cultural diversity, which would enable individuals to shape themselves. Indeed, this is not just an ideal, but is a right recognized under Article 27(1) of the Universal Declaration of Human Rights, and Article 15 of the .<a href="#sdfootnote24sym" name="sdfootnote24anc"><sup>24</sup></a> However, an IP maximization approach, which the draft stategy seems to embrace, hinders the growth of such a culture, creating a protectionist environment while preventing access to various resources which may be of use for further innovations.</li>
<li style="text-align: justify; ">The question of whether IP rights given to innovators are the most effective tools to promote innovation in society has been widely discussed in economics, politics and law, especially in the last four decades.<a href="#sdfootnote25sym" name="sdfootnote25anc"><sup>25</sup></a> Traditional arguments in favour of temporary monopolies incentivising innovation have been effectively questioned as creating monopolies on innovation, contributing to increasing prices and a distorted allocation of resources, inefficiency and a net loss of welfare. <a href="#sdfootnote26sym" name="sdfootnote26anc"><sup>26</sup></a> It has also been effectively established that most innovation is incremental and cumulative, necessitating the access to pre-existing data and works.<a href="#sdfootnote27sym" name="sdfootnote27anc"><sup>27</sup></a> It would be welcome if the huge amount of academic literature on these matter were taken into consideration by the expert group. While intellectual property rights are not <i>per se</i> antithetical to innovation, creativity, and cultural development, an IP-maximalist policy and law has been shown to harm those very objectives.</li>
<li style="text-align: justify; ">CIS therefore submits that the vision of the policy also reflect the commitment to the creation of a holistic and balanced framework of intellectual property rights in the nation with the recognition that an intellectual property-centric system would not necessarily be the best means of promoting creativity, innovation and access, the promotion of which are part of the stated desire of the policy.</li>
<li style="text-align: justify; ">Further, we believe that the principles of freedom of expression and of due process of law, both of which are constitutionally-recognized rights in India, should be recognized in the vision as principles that any intellectual property rights regime should respectively seek to promote and respect. </li>
</ol><ol> </ol> <ol type="I"> <ol> </ol></ol>
<h3>On the Mission</h3>
<ol>
<li style="text-align: justify; ">CIS appreciates the commitment to establish a balanced, dynamic and vibrant intellectual property system in India.<a href="#sdfootnote28sym" name="sdfootnote28anc"><sup>28</sup></a> We recommend that the mission of the policy also include a commitment to<i>foster </i><i>a</i><i>ccess to </i><i>k</i><i>nowledge </i>as well as the commitment to creating a<i>system of intellectual property rights </i><i>which serve the public interest by strengthening </i><i>limitations and exceptions </i> <i>to IP regimes, which are aimed to provide a public interest oriented counterbalance to the monopoly rights granted under IPR laws.</i></li>
<li style="text-align: justify; ">We believe that preventing unreasonable and disproportionate remedies to IPR law violations are an important part of ensuring that these laws serve the public interest rather than subvert them for purely private interests. This important principle ought to find reflection in the policy's mission statement.</li>
<li style="text-align: justify; ">It is suggested that in addition to public health, food security and the environment<a href="#sdfootnote29sym" name="sdfootnote29anc"><sup>29</sup></a>, other areas of socio-economic and cultural importance, including <i> inter alia,</i>foundational scientific research, education, disability rights, and access to knowledge, be added as additional areas that warrant special protection , in the mission statement.</li>
<li style="text-align: justify; ">It is submitted that these commitments are essential to the creation and working of a balanced intellectual property framework that the Policy seeks to achieve. </li>
</ol><ol> </ol> <ol type="I"> <ol> </ol></ol>
<h3>On Objective 1: IP Awareness and Promotion</h3>
<ol>
<li style="text-align: justify; ">The first objective of the Policy lays out a detailed action plan for creating awareness about intellectual property as well as for the promotion of intellectual property. The underlying rationale for this endeavour has been identified on various levels - that there are economic, social and cultural benefits of intellectual property;<a href="#sdfootnote30sym" name="sdfootnote30anc"><sup>30</sup></a> that intellectual property protection accelerates development, promotes entrepreneurship as well as increases competitiveness; <a href="#sdfootnote31sym" name="sdfootnote31anc"><sup>31</sup></a> and that the global regime is one of strongly protected intellectual property rights.<a href="#sdfootnote32sym" name="sdfootnote32anc"><sup>32</sup></a></li>
<li style="text-align: justify; ">It is submitted that the identification of this underlying rationale is not backed by sufficient evidence. These justifications, in their pursuit of a favourable intellectual property regime do not present a balanced picture of all the facts.</li>
<li style="text-align: justify; ">Current existing empirical research does not show an unambiguous nexus between the granting of IP rights and an increase in innovation and productivity, as innovation and productivity cannot not identified with the number of patents awarded. <a href="#sdfootnote33sym" name="sdfootnote33anc"><sup>33</sup></a> This can be seen in the US economy, where despite an enormous increase in the number of patents, there has been no dramatic acceleration in technological progress. <a href="#sdfootnote34sym" name="sdfootnote34anc"><sup>34</sup></a> In fact, studies prove the contrary to be true. In the United States, patenting increased drastically over the last few decades, quadrupling from 59,715 patents being issued in 1983, to 244,341 in 2010. However, according to the Bureau of Labour Statistics, annual growth in the total factor productivity reduced from 1.2% in 1970-79 to below 1% in 2000-09, <a href="#sdfootnote35sym" name="sdfootnote35anc"><sup>35</sup></a> whereas the annual expenditure on research and development saw hardly any change, oscillating in a band of 2.5% of the GDP for over three decades.<a href="#sdfootnote36sym" name="sdfootnote36anc"><sup>36</sup></a> In relatively new industries such as software and biotechnology, still in their nascent stages of development, patenting has been introduced without any positive contributions to innovation. In fact, in their empirical work described in <i>Patent Failure</i> (2008), <a href="#sdfootnote37sym" name="sdfootnote37anc"><sup>37</sup></a> Bessen and Meurer have argued that increased patenting has resulted in decreased social welfare.</li>
<li style="text-align: justify; ">Further, no unambiguous connections have been found between innovation and intellectual property rights in academic studies. In a meta-study conducted in 2006,<a href="#sdfootnote38sym" name="sdfootnote38anc"><sup>38</sup></a> Boldrin and Levine observed that there was weak or no evidence which suggested that strengthening the patent regime led to an increase in innovation. Similarly, it was observed by Jaffe that "despite the significance of policy changes and the wide availability of detailed data relating to patenting, robust conclusions regarding the empirical consequences for technological innovations of changes in patent policy are few. There is widespread unease that the costs of stronger patent protection may exceed the benefits. Both theoretical and, to a lesser extent, empirical research suggest this possibility." <a href="#sdfootnote39sym" name="sdfootnote39anc"><sup>39</sup></a></li>
<li style="text-align: justify; ">In his study of 60 nations over the past 150 years, Josh Lerner concluded that "the impact of patent protection-enhancing on innovation was in fact negative, thereby running counter to assumptions made by economists that incentives affect behavior and that stronger property rights encourage economic growth.<a href="#sdfootnote40sym" name="sdfootnote40anc"><sup>40</sup></a></li>
<li style="text-align: justify; ">Even in those studies, where support is found for a positive correlation between patents and innovation, it is made clear that this correlation is not applicable to developing and least-developed countries. This, for instance, is the conclusion of the United Nations Industrial Development Organization's meta-study titled "The Role of Intellectual Property Rights in Technology Transfer and Economic Growth: Theory and Evidence". <a href="#sdfootnote41sym" name="sdfootnote41anc"><sup>41</sup></a></li>
<li>It is crucial that all policy be based on evidence, and not ideology.</li>
<li style="text-align: justify; ">Thus, it is submitted that any program that seeks to create awareness about intellectual property must necessarily be one that presents a balanced view, clearly stating all facts and as many diverse opinions as possible; avoiding the current situation where public interest groups and academics are sidelined in favour of rights-holders groups.</li>
<li style="text-align: justify; ">CIS submits that the nation-wide program of promotion on the benefits of intellectual property <a href="#sdfootnote42sym" name="sdfootnote42anc"><sup>42</sup></a> must be based on evidence. Crucially, the importance of the public domain, for which a great deal of evidence exists,<a href="#sdfootnote43sym" name="sdfootnote43anc"><sup>43</sup></a> must highlighted in any such also equally promote the importance the role of limitations and exceptions and clearly identify the issues with the intellectual property system, including the fact that it has not been proven that there is a nexus between intellectual property and innovation. The nation wide program should convey the role of different stakeholders, including libraries and archives, organizations working with persons with disabilities and educational institutions and the negative effects of a rights centric intellectual property system on such important institutions.</li>
<li style="text-align: justify; ">It is important that public-funded research organizations should be engaged in neutral - non-industry funded -research, and not campaigns (as identified in the policy).<a href="#sdfootnote44sym" name="sdfootnote44anc"><sup>44</sup></a> This will help identify the issues of the present intellectual property system as well as the potential for reform, tailored to the Indian context. We have to ensure that campaigns - as with policymaking and pedagogic material - are based on research rather than faith or ideology. It is further submitted that course materials to be created for educational institutions at all levels as well as for online and distance learning programs <a href="#sdfootnote45sym" name="sdfootnote45anc"><sup>45</sup></a> should include a discussion on the drawbacks of a maximalist intellectual property system, a discussion on limitations and exceptions, alternatives to intellectual property, as well as case studies from different parts of the world highlighting the use of intellectual property as well as alternatives in a socio-economic and culture specific environment. Particularly in the case of education institutions as well as online and distance learning mechanisms, which are often faced with great challenges as a result of rights-holders centric intellectual property laws, the irony in promoting a system that only acts to their detriment would be great. </li>
</ol><ol> </ol> <ol type="I"> <ol> </ol></ol>
<h3>On Objective 2: Creation of IP</h3>
<ol type="I"><ol> </ol> </ol> <ol> </ol><ol>
<li style="text-align: justify; ">The second objective of the Policy seeks to stimulate the creation and growth of intellectual property through measures that encourage IP generation.<a href="#sdfootnote46sym" name="sdfootnote46anc"><sup>46</sup></a> This objective seeks to encourage IP generation and creation across various sectors, including the introduction of the system of 'utility models' in India. There are several problems with this objective, primarily that it assumes IP generation is necessarily a means to innovation, whereas it is submitted that the emphasis should be on innovation holistically, including by incentive mechanisms other than IP. </li>
</ol><ol> </ol> <ol> </ol> <ol> <ol> <ol> </ol></ol></ol>
<h3>On the IP-Innovation/ Creativity Nexus</h3>
<ol><ol><ol> </ol> </ol> </ol> <ol> </ol><ol>
<li style="text-align: justify; ">It is submitted that similar to the earlier objective relating to the promotion and the creation of awareness about intellectual property, the underlying rationale behind this objective too seems to be the perception that there is a positive correlation between greater amounts of intellectual property and greater innovation, and the belief that intellectual property protection necesarrily promotes innovation. However, there is relatively little research to back this assumption. Illustratively, the following example may be considered. In a study conducted by Heidi L. Williams,<a href="#sdfootnote47sym" name="sdfootnote47anc"><sup>47</sup></a> the sequencing of the human genome was used to provide an empirical context to showcase the deterioration in development due to the presence of IP. It was concluded by Williams that the presence of IP rights in the sequencing of the human genome resulted in reductions in subsequent scientific research and product development by up to 20-30%. <a href="#sdfootnote48sym" name="sdfootnote48anc"><sup>48</sup></a> Williams further observed that "if more socially valuable technologies are more likely to be held with IP, then the welfare costs for the same could be substantial." The presence of intellectual property rights, it is argued, stifles subsequent product development by restricting access to the data or technology required for further development. <a href="#sdfootnote49sym" name="sdfootnote49anc"><sup>49</sup></a></li>
<li style="text-align: justify; ">Prof. Petra Moser of Stanford has conducted a large volume of research on economic evidence on the linkages between patents and innovation. Her research, which shows that in the 19th century the majority of inventions happened outside the patent system <a href="#sdfootnote50sym" name="sdfootnote50anc"><sup>50</sup></a> indicates that alternative explanations might explain inventions better, including "the importance of a culture of entrepreneurship,<a href="#sdfootnote51sym" name="sdfootnote51anc"><sup>51</sup></a> experimentation,<a href="#sdfootnote52sym" name="sdfootnote52anc"><sup>52</sup></a> the free exchange of knowledge, <a href="#sdfootnote53sym" name="sdfootnote53anc"><sup>53</sup></a> and science.<a href="#sdfootnote54sym" name="sdfootnote54anc"><sup>54</sup></a> In a paper titled, "How do Patent Laws Influence Innovation", she concludes that "I find no evidence that patent laws increased levels of innovative activity but strong evidence that patent systems influenced the distribution of innovative activity across industries."</li>
<li style="text-align: justify; ">Prof. Bryan Mercurio, in a paper written for the World Economic Forum and the International Centre for Trade and Sustainable Development, concludes, "The empirical evidence suggests that increasing levels of patent protection have not resulted in increased innovation. Instead, it has limited competition, and increased the cost of business, to the detriment of the world economy. Innovation has also suffered, as increasing protection has inhibited the ability of many firms to innovate." He further recommends that we "conduct further research on the correlation or causal relationship between patents and innovation, including the indirect benefits for innovation that patent protection may provide". Petra Moser notes, "Patent laws that existed in the mid-nineteenth century had been adopted in a relatively ad-hoc manner, dependent more on legal traditions than economic considerations".<a href="#sdfootnote55sym" name="sdfootnote55anc"><sup>55</sup></a></li>
<li style="text-align: justify; ">The empirical data collected by scholars, as provided above is goes to show that innovation is not necessarily benefitted by stronger patent regimes. Further, even the literature that asserts a positive correlation between the two acknowledge that this doesn't apply to developing countries. In addition, whilepatents may provide revenue to patent owners, it also makes further innovation more costly, thereby discouraging competitors from entering the arena due to high prices, and due to the large number of pre-existing patents. This effect, known as the</li>
<li style="text-align: justify; ">The Supreme Court of Canada, has for instance, has on multiple occasions recognized the importance of the public domain. In "2002, Justice Binne, writing for the majority in Théberge v. Galerie d'Art du Petit Champlain inc., stated: 'Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole (para.32).' Two years later, in CCH Canadian Ltd. v. Law Society of Upper Canada, Chief Justice McLachlin spoke of the importance that there be 'room for the public domain to flourish as others are able to produce new works by building on the ideas and information contained in the works of others (para. 23).'"<a href="#sdfootnote56sym" name="sdfootnote56anc"><sup>56</sup></a></li>
<li>Lastly, there is even evidence that in multiple sectors - including fashion, finance, font design, and software - lesser IP protection in the form of patents, trademarks, and copyright, actual encourages increased innovation.<a href="#sdfootnote57sym" name="sdfootnote57anc"><sup>57</sup></a></li>
</ol> <ol> </ol> <ol> <ol> <ol> </ol></ol></ol>
<h3>On Utility Models</h3>
<ol><ol><ol> </ol> </ol> </ol> <ol> </ol><ol>
<li style="text-align: justify; ">On the question of introduction of a new on utility models<a href="#sdfootnote58sym" name="sdfootnote58anc"><sup>58</sup></a> CIS observes that DIPP has previously considered developing a framework for granting Utility Models for 'innovations' and invited suggestions on a discussion paper on the subject.<a href="#sdfootnote59sym" name="sdfootnote59anc"><sup>59</sup></a> Reports <a href="#sdfootnote60sym" name="sdfootnote60anc"><sup>60</sup></a> suggest that Small, Medium and Micro Enterprises are in favour of the Utility Model Protection system in India because developing countries such as China and Korea have demonstrated a corresponding economic growth attributable to the introduction of the system. However, there is no evidentiary data to support this hypothesis. Studies suggest that there exist only correlations and not causal links between heightened innovative activity and implementation of utility model protection. <a href="#sdfootnote61sym" name="sdfootnote61anc"><sup>61</sup></a> Empirical evidence on the role of intellectual property protection in promoting innovation and growth in general remains limited and inconclusive.<a href="#sdfootnote62sym" name="sdfootnote62anc"><sup>62</sup></a> Reports also suggest that in China, the abundance of Utility Model has led to lowering of quality of innovation. <a href="#sdfootnote63sym" name="sdfootnote63anc"><sup>63</sup></a> In Australia, an "innovation patent" - the Australian version of utility model protection - was awarded for a "circular transportation facilitation device", i.e., a wheel. <a href="#sdfootnote64sym" name="sdfootnote64anc"><sup>64</sup></a></li>
<li style="text-align: justify; ">It is this submitted that whether the ushering of a 2nd tier of protection model for lower and incremental innovations would have a positive impact on innovation in India is extremely debatable. There have been several criticisms of utility models, <i>inter alia</i>, explosion in litigation of poor quality patents and legal uncertainty - which impact small business the maximum in terms of costs <a href="#sdfootnote65sym" name="sdfootnote65anc"><sup>65</sup></a>; the system may be more utilised by foreign companies rather than local firms, in which case there is a possibility that this will lead to an increase in a flow of royalties and licensing fees to overseas producers. Utility model rights can be, and have been, used by companies to cordon off entire areas of research. <a href="#sdfootnote66sym" name="sdfootnote66anc"><sup>66</sup></a></li>
<li style="text-align: justify; ">CIS submits that as the policy 'intends to harness the full benefits of creation and innovation in the larger interest of society and citizens' <a href="#sdfootnote67sym" name="sdfootnote67anc"><sup>67</sup></a> the introduction of a law on utility models would be antithetical to this objective. </li>
</ol><ol> </ol> <ol> <ol> <ol> </ol></ol></ol>
<h3>On Improving IP Output of National Research Laboratories, Universities <i>et al</i><b> </b></h3>
<ol><ol><ol> </ol> </ol> </ol> <ol> </ol><ol>
<li style="text-align: justify; ">The Policy seeks to improve the output of national research laboratories, universities and technical institutions, among others.<a href="#sdfootnote68sym" name="sdfootnote68anc"><sup>68</sup></a> It is submitted that these institutions are public funded institutions, <a href="#sdfootnote69sym" name="sdfootnote69anc"><sup>69</sup></a> and in effect, this recommendation of the Policy seeks to therefore promote intellectual property creation in public funded institutions.</li>
<li style="text-align: justify; ">A significant chunk of research and development occurs at public funded academic and research institutions and, excessive use of IPR as a tool to creating private ownership rights over inventions may preclude use of such innovation by the public. This may also create a barrier to access the best technologies and research- which were funded by taxpayers' money to begin with. CIS supports the principle that IPRs resulting from of publicly funded research should automatically belong to the funder.<a href="#sdfootnote70sym" name="sdfootnote70anc"><sup>70</sup></a></li>
<li style="text-align: justify; ">Further, it is submitted that there exists a danger of public funded research institutions re-orienting their objectives focus only on areas of commercial value. This may lead to neglect of certain research areas. A stringent policy will create an unfavourable conflict between revenue generation and sharing of public good. The policy must ensure that it is flexible and compensates the inventors whilst permitting public access to research.</li>
<li style="text-align: justify; ">CIS submits that there should be no encumbrances over public funded research and inventions. The Policy must also ensure that such proposed IP creation does not prevent or interfere with dissemination of public funded research. <a href="#sdfootnote71sym" name="sdfootnote71anc"><sup>71</sup></a></li>
<li style="text-align: justify; ">CIS strongly supports the recent steps by government agencies (including the Department of Science and Technology and the Department of Biotechnology<a href="#sdfootnote72sym" name="sdfootnote72anc"><sup>72</sup></a> as well as other institutions including the Council of Scientific and Industrial Research<a href="#sdfootnote73sym" name="sdfootnote73anc"><sup>73</sup></a>, Indian Council of Agricultural Research<a href="#sdfootnote74sym" name="sdfootnote74anc"><sup>74</sup></a> and Institute of Mathematical Sciences <a href="#sdfootnote75sym" name="sdfootnote75anc"><sup>75</sup></a>) in making scholarly research openly accessible. The benefits of implementing an open access policy with regard to scientific and scholarly works are manifold. Providing open access to scholarly research will ensure percolation of cutting edge research into the society.</li>
<li style="text-align: justify; ">It is thus submitted that the Policy should adopt a more nuanced, cautious and balanced take on the creation of intellectual property, particularly taking into consideration India's economic status as an emerging economy and our international position. The Policy must recognise that there is no inherent societal merit in the mere creation of intellectual property and that innovation flourishes even in the absence of intellectual property protections. </li>
</ol><ol> </ol>
<h3>On Objective 3: Legal and Legislative Framework</h3>
<ol>
<li style="text-align: justify; ">According to the Policy, the objective sought to be achieved is the creation of strong and effective laws on intellectual property, consistent with national priorities as well as our international obligations, balancing the interest of the rights holders with public interest. <a href="#sdfootnote76sym" name="sdfootnote76anc"><sup>76</sup></a></li>
<li style="text-align: justify; ">CIS fully supports the view that the legislative framework on intellectual property must balance the rights of all stakeholders and be in public interest. CIS is also appreciates the importance of national priorities in the framing of India's legislative framework. CIS also notes with appreciation that the discussion in the Policy reiterates that India's laws are in compliance with the TRIPS Agreement <a href="#sdfootnote77sym" name="sdfootnote77anc"><sup>77</sup></a> as well as the stance that India will continue to utilize the flexibilities available in international treaties as well as the TRIPS Agreement<a href="#sdfootnote78sym" name="sdfootnote78anc"><sup>78</sup></a> while creating its legal framework.</li>
<li style="text-align: justify; ">CIS also supports the acknowledgement of the fact that India's laws need to be updated periodically, depending on various factors.<a href="#sdfootnote79sym" name="sdfootnote79anc"><sup>79</sup></a> CIS fully supports the process proposed for amendments to the law, including,<i>inter alia, </i>the conduction of objective and analytical studies and inputs from various stakeholders. <a href="#sdfootnote80sym" name="sdfootnote80anc"><sup>80</sup></a> It is submitted however, that equal weightage must be given to the inputs from all stakeholders and measures must be taken to ensure that the interests and demands of rights-holders do not outweigh the interests and demands of other stakeholders, particularly those at the other end of the spectrum, who greatly rely on the existence and guarantee of flexibilities, limitations and exceptions to intellectual property. </li>
</ol><ol> </ol>
<h3 align="JUSTIFY">On Utility Models and Intellectual Property in Public Funded Research</h3>
<ol>
<li>The Policy envisages significant changes to India's intellectual property system, including the creation of a law for the protection of utility models as well as introduction of intellectual property in public funded research.</li>
<li style="text-align: justify; ">CIS recommends that it would not be advisable to introduce intellectual property in public funded research as well as cautions against the introduction of a law on utility patents. A detailed submission on these issues has been made earlier in this document, in Section 3.4.3. at page 7 for intellectual property in public funded research as well as in Section 3.4.2. at page 6 on utility models. </li>
</ol><ol> </ol>
<h3 align="JUSTIFY">On the Negotiation of International Treaties and Agreements</h3>
<ol>
<li>CIS commends the recommendation of the Policy that the negotiation of international treaties and agreements will be in consultation with various stakeholders. However, CIS cautions against entering into bilateral or plurilateral international agreements which increase India's IPR obligations beyond our current obligations under multilateral agreements. It was only in 2006 that</li>
<li style="text-align: justify; ">It is submitted that FTAs often levy standards which are beyond those found in the TRIPS Agreement, and have thus been criticized. <a href="#sdfootnote81sym" name="sdfootnote81anc"><sup>81</sup></a> A central aspect of this criticism is that TRIPS-plus-FTAs reduce policy space for the implementation of TRIPS flexibilities. This also creates the impression that TRIPS only imposes a "minimum level" of protection, which must be available in all national laws of its Member States, without any apparent limitation to a further extension of such protection or intervention which one country may impose on another. The World Health Organization enunciated that "bilateral trade agreements should not seek to incorporate TRIPS-plus protection in ways that may reduce access to medicines in developing countries.<a href="#sdfootnote82sym" name="sdfootnote82anc"><sup>82</sup></a> Further, WHO members were urged in the Fifty-Seventh World Health Assembly "to take into account in bilateral trade agreements the flexibilities contained in the Agreement on Trade-related Aspects of Intellectual Property Rights and recognized by the Declaration on the TRIPS Agreement and Public Health adopted by the WTO Ministerial Conference."<a href="#sdfootnote83sym" name="sdfootnote83anc"><sup>83</sup></a></li>
<li style="text-align: justify; ">Furthermore, TRIPS-plus initiatives consequent in the dilution into a bilateral forum, as opposed to the plurality provided in multilateral fora, provided by the TRIPS. The imposition of standards by FTAs may ultimately disturb the balance of rights and obligations which are enshrined in the TRIPS Agreement,<a href="#sdfootnote84sym" name="sdfootnote84anc"><sup>84</sup></a> and also have the potential to constrain the flexibilities provided to Member States in the TRIPS, particularly in areas which are of extreme significance to developing countries, such as transfer of technology, socio-economic development, promotion of innovation, public health and access to knowledge. Furthermore, they also tend to negate decisions which were taken multilaterally such as the Doha Declaration on the TRIPS Agreement and Public Health.</li>
<li style="text-align: justify; ">It is therefore submitted that the Policy must caution against entering into any international agreement that seeks to enforce TRIPS-plus standards, contrary to India's stance (as noted by the Policy itself) that its laws were compliant with international obligations.</li>
</ol>
<h3 align="JUSTIFY">On Limitations and Exceptions</h3>
<ol>
<li style="text-align: justify; ">It is observed that the Policy recommends that laws be enacted to address national needs, <a href="#sdfootnote85sym" name="sdfootnote85anc"><sup>85</sup></a> but the only mentions limitations and exceptions as an area of study for future policy development.<a href="#sdfootnote86sym" name="sdfootnote86anc"><sup>86</sup></a>It is submitted that while it is indeed necessary for further research to be undertaken in the area of limitations and exceptions, it is also critical to enact new laws and amend existing ones to foster a rich environment for limitations and exceptions, in order to achieve a holistic and balanced intellectual property framework. It is further submitted that this would also be in consonance with the objective of the negotiation of international treaties and agreements in consultation with stakeholders.</li>
<li style="text-align: justify; ">While the granting of exclusive rights over intellectual property is considered to be an incentive for further investments into innovative activities and the production of knowledge, allowing the exercise of the full scope of this exclusion in all circumstances may not meet the end goal of the enhancement of public welfare, using the intellectual property system. Therefore, it is essential that an intellectual property system be flexible allowing for certain limitations and exceptions in order to strike a balance between right holders, the public and third parties. The need for such flexibility in the intellectual property system of a country has also been highlighted by the <a href="http://www.wipo.int/patents/en/topics/exceptions_limitations.htm">World Intellectual Property Organization</a>.</li>
<li style="text-align: justify; ">It is therefore suggested that the Policy include an additional recommendation for the inclusion, adoption and periodic renewal of limitations and exceptions in India's intellectual property laws, either be enacting new legislations or by amending existing legislations wherever applicable. It is further suggested that this recommendation also inform India's negotiations at the international level, where any agreement that India might potentially sign, not invalidate or narrow in any form any limitations and exceptions and provide for their continued exercise in the broadest possible scope and manner.</li>
</ol> <ol> </ol>
<h3 align="JUSTIFY">On Standard Setting</h3>
<ol>
<li style="text-align: justify; ">CIS commends the Policy's focus on standards in technology and standard setting organisations. CIS strongly supports the adoption of open standards as a measure that helps stimulate active competition amongst implementors of various standards, and thereby encourages innovation. The Department of IT finalized its Policy on Open Standards for e-Governance in 2010,<a href="#sdfootnote87sym" name="sdfootnote87anc"><sup>87</sup></a> and CIS strongly supports this policy, and would encourage it be adopted by all state governments as well.</li>
<li style="text-align: justify; ">CIS strongly recommends developing and supporting the evolution of open standards. The Policy must not encourage use of IPR to limit access to standards, because these are the foundational rules any technology must adhere to enter the market or ensure quality. <a href="#sdfootnote88sym" name="sdfootnote88anc"><sup>88</sup></a> CIS submits that access to these standards must not be limited by making them proprietary through IPR protection. Further, the Policy must support transparent standard setting processes and procedures in national and at international for a for all participants.</li>
<li>CIS further appreciates the endeavor to encourage the development of global standards influenced by technologies developed in India.</li>
<li style="text-align: justify; ">CIS submits that it is also important to ensure that India emerges as a global player in the technology sector, not just in the development of indigenous standards, but also in the equally important space of manufacturing using existing standards, particularly in light of the Government's recent "Make In India" and "Digital India" initiatives. It is further submitted however, that in most instances, these standards are protected by patents; where patents essential to a standard would be standard essential patents. CIS suggests that the Policy recommend measures that might be adopted to ensure access to standards essential patents, including, for instance, the establishment of a government aided patent pool. It is submitted that addressing the question of access to standards and not just their development would be a holistic approach that the Policy should adopt.</li>
</ol>
<h3>On Objective 5: Commercialization of IP</h3>
<ol type="I"><ol> </ol> </ol> <ol>
<li style="text-align: justify; ">CIS appreciates that the Policy seeks to promote licensing and technology transfer for intellectual property, and notes that the Policy also seeks to promote reasonable and non-discriminatory patent pooling to maximise the ability of smaller companies to commercialise IP and bring innovative solutions based on standards to the market.</li>
<li style="text-align: justify; ">CIS believes that the government establishing patent pools for digital technologies will promote access to knowledge and stimulate manufacturing in the information technology and electronics sectors in India, in line with the government's "Make In India" and "Digital India" initiatives. CIS has earlier urged the government to enable access to low cost access devices by establishing a government-aided patent pool of essential technologies, without which there is a high likelihood of such devices getting caught up in the 'patent wars' that have happened elsewhere around the world over smartphones.<a href="#sdfootnote89sym" name="sdfootnote89anc"><sup>89</sup></a> CIS submits that the creation of government-aided patent pools and facilitation of cross-licensing will also be helpful in resolving issues created by patent thickets and gridlocks by reducing transaction costs for licensees and solving an economic cooperation problem.</li>
</ol> <ol type="I"> </ol>
<h2 align="JUSTIFY">Concluding Remarks</h2>
<ol>
<li style="text-align: justify; ">Debabrata Saha, the Deputy Permanent Representative of India to the United Nations, while speaking on the introduction of the Development Agenda at the World Intellectual Property Organization, with admirable clarity noted, "Let me start on a positive note by asking: with all the damage that TRIPS has wrought on developing countries could it possibly have a silver lining? Maybe - if we want to be generous. TRIPS, one might argue, did bring intellectual property to the forefront of consciousness of people everywhere, and, over time made them aware of the dangers inherent in a protective regime that takes little account of either public policy, or the state of development of a member country." It is thus imperative that when we fashion our public policy, we take account of the dangers he mentioned. He went on to note, "Intellectual property rights have to be viewed not as a self contained and distinct domain, but rather as an effective policy instrument for wide ranging socio-economic and technological development. The primary objective of this instrument is to maximize public welfare." We wholeheartedly support this position of the Indian government, and would encourage the IPR Think Tank to seek to maximize public welfare and creativity and innovation rather than maximizing IPR alone. Importantly, as Mr. Saha, speaking on behalf of the Indian government noted, IP is not an end in itself, contrary to what the current draft of the National IPR Policy seems to promote.</li>
<li style="text-align: justify; ">Flexibility is considered to be an essential characteristic in defining and shaping the intellectual property system of countries around the world. Such flexibility allows scope for further innovations and creations, thereby subserving the common good. As per Article 39 of the Constitution of India, "the State shall in particular, direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good." It is therefore submitted that the National IPR Policy of India should be contoured in such a manner that it encourages greater use of exceptions and limitations to the otherwise exclusionary use of intellectual property, encourages the expansion of the public domain, secures proportionality in enforcement of IP rights, promotes alternatives to IP - including open access to scholarly literature, open educational resources, free/open source software, open standards, open data, and aims to create a regime of intellectual property that aims to serve the public interest and not just the narrow interest of private right holders. Such an approach should not be merely rights-based, but look at interests of the general public, especially the poor, as well, in order to further the aim of the nation to create a more egalitarian society, and adopt the Directive Principles in the Constitution.</li>
<hr />
</ol><ol></ol>
<div id="sdfootnote1">
<p style="text-align: justify; "><a href="#sdfootnote1anc" name="sdfootnote1sym">1</a> <a href="http://www.cis-india.org/">www.cis-india.org</a> (last accessed 30 November, 2014).</p>
</div>
<div id="sdfootnote2">
<p><a href="#sdfootnote2anc" name="sdfootnote2sym">2</a> http://www.dipp.nic.in/English/acts_rules/Press_Release/pressRelease_IPR_Policy_30December2014.pdf.</p>
</div>
<div id="sdfootnote3">
<p><a name="_GoBack"></a> <a href="#sdfootnote3anc" name="sdfootnote3sym">3</a> <i>See </i> http://cis-india.org/ (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote4">
<p><a href="#sdfootnote4anc" name="sdfootnote4sym">4</a> <i>See </i> http://cis-india.org/a2k (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote5">
<p><a href="#sdfootnote5anc" name="sdfootnote5sym">5</a> <i>See </i> http://cis-india.org/openness (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote6">
<p><a href="#sdfootnote6anc" name="sdfootnote6sym">6</a> <i>See</i> http://cis-india.org/internet-governance (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote7">
<p><a href="#sdfootnote7anc" name="sdfootnote7sym">7</a> <i>See </i> http://cis-india.org/accessibility (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote8">
<p><a href="#sdfootnote8anc" name="sdfootnote8sym">8</a> <i>See </i> http://cis-india.org/digital-natives (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote9">
<p><a href="#sdfootnote9anc" name="sdfootnote9sym">9</a> <i>See</i> http://cis-india.org/raw (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote10">
<p><a href="#sdfootnote10anc" name="sdfootnote10sym">10</a> <i>See</i> http://www.wipo.int/members/en/admission/observers.html (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote11">
<p><a href="#sdfootnote11anc" name="sdfootnote11sym">11</a> <i>See </i> http://cis-india.org/a2k/blog/ngo-profile-knowledge-ecology-international (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/ngo-profile-third-world-network (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote12">
<p style="text-align: justify; "><a href="#sdfootnote12anc" name="sdfootnote12sym">12</a> <i>See illustratively </i> http://cis-india.org/a2k/blog/analysis-copyright-expansion-india-eu-fta (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/india-eu-fta-copyright-issues (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/a-guide-to-the-proposed-india-european-union-free-trade-agreement (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote13">
<p><a href="#sdfootnote13anc" name="sdfootnote13sym">13</a> <i>See illustratively</i> http://cis-india.org/news/inet-bangkok-june-8-2013-governance-in-the-age-of-internet-and-fta (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote14">
<p><a href="#sdfootnote14anc" name="sdfootnote14sym">14</a> <i>See illustratively</i> http://cis-india.org/a2k/blog/2010-special-301 (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote15">
<p style="text-align: justify; "><a href="#sdfootnote15anc" name="sdfootnote15sym">15</a> <i>See illustratively</i> http://cis-india.org/a2k/blog/analysis-copyright-amendment-bill-2012 (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/sc-report-on-amendments (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/copyright-bill-parliament (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/tpm-copyright-amendment (last accessed 16 January, 2015); http://cis-india.org/a2k/blog/copyright-privacy (last accessed 16 January, 2015); http://cis-india.org/a2k/blog/copyright-bill-analysis (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote16">
<p><a href="#sdfootnote16anc" name="sdfootnote16sym">16</a> <i>See</i> http://cis-india.org/a2k/blog/comments-on-science-technology-and-innovation-policy-draft (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote17">
<p><a href="#sdfootnote17anc" name="sdfootnote17sym">17</a> <i>See</i> http://cis-india.org/a2k/blog/exhaustion (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/parallel-importation-of-books (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote18">
<p style="text-align: justify; "><a href="#sdfootnote18anc" name="sdfootnote18sym">18</a> <i>See</i> http://cis-india.org/a2k/blog/cis-submission-draft-patent-manual-2010 (last accessed 18 January, 2015) and http://cis-india.org/a2k/blog/comments-on-draft-guidelines-for-computer-related-inventions (last accessed 18 January, 2015) respectively.</p>
</div>
<div id="sdfootnote19">
<p><a href="#sdfootnote19anc" name="sdfootnote19sym">19</a> <i>See</i> http://cis-india.org/a2k/blog/lid-on-royalty-outflows (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote20">
<p><a href="#sdfootnote20anc" name="sdfootnote20sym">20</a> <i>See</i> http://cis-india.org/a2k/blog/exceptions-and-limitations (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote21">
<p style="text-align: justify; "><a href="#sdfootnote21anc" name="sdfootnote21sym">21</a> <i>See illustratively</i> http://cis-india.org/a2k/consumers-international-ip-watchlist-report-2012 (last accessed 18 January, 2015);<i> </i> http://cis-india.org/a2k/blog/ip-watch-list-2011 (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/consumers-international-ip-watch-list-2009 (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote22">
<p style="text-align: justify; "><a href="#sdfootnote22anc" name="sdfootnote22sym">22</a> The Washington Declaration on Intellectual Property and Public Interest concluded after the Global Congress on Intellectual property and Public Interest in August 2011 attended by over 180 experts from 32 countries articulate this position perfectly. Available at: <a href="http://infojustice.org/wp-content/uploads/2011/09/Washington-Declaration.pdf"> http://infojustice.org/wp-content/uploads/2011/09/Washington-Declaration.pdf </a> (Last Accessed: 29 November, 2014).</p>
</div>
<div id="sdfootnote23">
<p><a href="#sdfootnote23anc" name="sdfootnote23sym">23</a> IPR Think Tank, National IPR Policy (First Draft) at page 5.</p>
</div>
<div id="sdfootnote24">
<p><a href="#sdfootnote24anc" name="sdfootnote24sym">24</a> Article 27(1) of the Universal Declaration of Human Rights states: "Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits."</p>
</div>
<div id="sdfootnote25">
<p style="text-align: justify; "><a href="#sdfootnote25anc" name="sdfootnote25sym">25</a> Julia Brüggemann, Paolo Crosetto <i>et al</i>, <i>Intellectual Property Rights Hinder Sequential Innovation - Experimental Evidence</i>, Center for European, Governance and Economic Development Research, Number 227, January 2015.</p>
</div>
<div id="sdfootnote26">
<p><a href="#sdfootnote26anc" name="sdfootnote26sym">26</a> Joseph E. Stiglitz, <i>Economic Foundations of Intellectual Property Rights</i>, Duke Law Journal, 57(6): 1693-1724.</p>
</div>
<div id="sdfootnote27">
<p><a href="#sdfootnote27anc" name="sdfootnote27sym">27</a> Graham M. Dutfield, Uma Suthersanen, <i>The Innovation Dilemma: Intellectual Property and the Historical Legacy of Cumulative Creativity</i>, Intellectual Property Quarterly, 2004 at 379.</p>
</div>
<div id="sdfootnote28">
<p><a href="#sdfootnote28anc" name="sdfootnote28sym">28</a> IPR Think Tank, National IPR Policy (First Draft) at page 5.</p>
</div>
<div id="sdfootnote29">
<p><a href="#sdfootnote29anc" name="sdfootnote29sym">29</a> IPR Think Tank, National IPR Policy (First Draft) at page 5<i>.</i></p>
</div>
<div id="sdfootnote30">
<p><a href="#sdfootnote30anc" name="sdfootnote30sym">30</a> IPR Think Tank, National IPR Policy (First Draft) at page 6.</p>
</div>
<div id="sdfootnote31">
<p><a href="#sdfootnote31anc" name="sdfootnote31sym">31</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote32">
<p><a href="#sdfootnote32anc" name="sdfootnote32sym">32</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote33">
<p><a href="#sdfootnote33anc" name="sdfootnote33sym">33</a> Michele Boldrin and David K. Levine, <i>The Case Against Patents</i>, Journal of Economic Perspectives, Vol. 27, No.1 - Winter 2013, 3-22.</p>
</div>
<div id="sdfootnote34">
<p><a href="#sdfootnote34anc" name="sdfootnote34sym">34</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote35">
<p><a href="#sdfootnote35anc" name="sdfootnote35sym">35</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote36">
<p><a href="#sdfootnote36anc" name="sdfootnote36sym">36</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote37">
<p><a href="#sdfootnote37anc" name="sdfootnote37sym">37</a> James Bessen and Michael J. Meurer, Patent Failure: How Judges, Bureaucrats and Lawyers Put Innovation at Risk, March 2008.</p>
</div>
<div id="sdfootnote38">
<p><a href="#sdfootnote38anc" name="sdfootnote38sym">38</a> Michele Boldrin and David K. Levine<i> Supra </i>Note 32.</p>
</div>
<div id="sdfootnote39">
<p><a href="#sdfootnote39anc" name="sdfootnote39sym">39</a> B.J. Jaffe, <i>The US Patent System in Transition: Innovation and the Innovation Process</i>, Research Policy, 29, 531-557, 2000.</p>
</div>
<div id="sdfootnote40">
<p><a href="#sdfootnote40anc" name="sdfootnote40sym">40</a> Josh Lerner, <i>The Empirical Impact of Intellectual Property Rights on Innovation: Puzzles and Clues</i>, Intellectual Property Rights and Economic Growth in the Long-Run: A Discover Model (2009).</p>
</div>
<div id="sdfootnote41">
<p><a href="#sdfootnote41anc" name="sdfootnote41sym">41</a> Rod Falvey & Neil Foster, The Role of Intellectual Property Rights in Technology Transfer and Economic Growth: Theory and Evidence (UNIDO Working Paper,</p>
</div>
<div id="sdfootnote42">
<p><a href="#sdfootnote42anc" name="sdfootnote42sym">42</a> <b>¶</b> 1.2 IPR Think Tank, National IPR Policy (First Draft) at page 6.</p>
</div>
<div id="sdfootnote43">
<p><a href="#sdfootnote43anc" name="sdfootnote43sym">43</a> See</p>
</div>
<div id="sdfootnote44">
<p><a href="#sdfootnote44anc" name="sdfootnote44sym">44</a> <b>¶</b> 1.3 IPR Think Tank, National IPR Policy (First Draft) at page 7.</p>
</div>
<div id="sdfootnote45">
<p><a href="#sdfootnote45anc" name="sdfootnote45sym">45</a> <b>¶</b> 1.5 IPR Think Tank, National IPR Policy (First Draft) at page 8.</p>
</div>
<div id="sdfootnote46">
<p><a href="#sdfootnote46anc" name="sdfootnote46sym">46</a> IPR Think Tank, National IPR Policy (First Draft) at page 8.</p>
</div>
<div id="sdfootnote47">
<p><a href="#sdfootnote47anc" name="sdfootnote47sym">47</a> Heidi L. Williams, <i>Intellectual Property Rights and Innovation: Evidence from the Human Genome</i>, National Bureau of Economic Research. Working Paper 16213, July 2010.</p>
</div>
<div id="sdfootnote48">
<p><a href="#sdfootnote48anc" name="sdfootnote48sym">48</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote49">
<p><a href="#sdfootnote49anc" name="sdfootnote49sym">49</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote50">
<p><a href="#sdfootnote50anc" name="sdfootnote50sym">50</a> Petra Moser, <i>Innovations and Patents in</i> Oxford Handbook of Economic History (Cain et al., eds., forthcoming), http://ssrn.com/abstract=2503503.</p>
</div>
<div id="sdfootnote51">
<p><a href="#sdfootnote51anc" name="sdfootnote51sym">51</a> <i>See generally</i> , David. S. Landes, The Unbound Prometheus: Technological Change and Industrial Development in Western Europe from 1750 to the Present (1969).</p>
</div>
<div id="sdfootnote52">
<p><a href="#sdfootnote52anc" name="sdfootnote52sym">52</a> <i>See generally</i> , Joel Mokyr. The Lever of Riches: Technological Creativity and Economic Progress (1990).</p>
</div>
<div id="sdfootnote53">
<p style="text-align: justify; "><a href="#sdfootnote53anc" name="sdfootnote53sym">53</a> <i>See generally</i> , Alessandro Nuvolari <i>Collective Invention during the British Industrial Revolution: the Case of the Cornish Pumping Engine,</i> 28 Cambridge J. Econ. 347 (2004). <i>See also</i>, Robert C. Allen, <i>Collective Invention</i>, 4 J. Econ. Behavior & Org. 1 (1983).</p>
</div>
<div id="sdfootnote54">
<p style="text-align: justify; "><a href="#sdfootnote54anc" name="sdfootnote54sym">54</a> A. Arora & N. Rosenberg, <i>Chemicals: A US Success Story</i> in Chemicals and Long-Term Economic Growth 71 (Arora et al., eds., 1998); see also, David C. Mowery & Nathan Rosenberg, Paths of Innovation. Technological Change in 20th-century America (1998).</p>
</div>
<div id="sdfootnote55">
<p><i><a href="#sdfootnote55anc" name="sdfootnote55sym">55</a></i> Petra Moser, <i>How Do Patent Laws Influence Innovation? Evidence from Nineteenth-Century World Fairs</i>, NBER Working Paper Series 9909, http://www.nber.org/papers/w9909.</p>
</div>
<div id="sdfootnote56">
<p><a href="#sdfootnote56anc" name="sdfootnote56sym">56</a> Meera Nair, <i>A Short-Lived Celebration</i>, Fair Duty (Jan. 8, 2012), https://fairduty.wordpress.com/2012/01/08/a-short-lived-celebration/</p>
</div>
<div id="sdfootnote57">
<p><a href="#sdfootnote57anc" name="sdfootnote57sym">57</a> See generally, Kal Raustiala & Christopher Sprigman, The Knockoff Economy (2012).</p>
</div>
<div id="sdfootnote58">
<p><a href="#sdfootnote58anc" name="sdfootnote58sym">58</a> <b>¶</b> 2.10 IPR Think Tank, National IPR Policy (First Draft) at page 10.</p>
</div>
<div id="sdfootnote59">
<p><a href="#sdfootnote59anc" name="sdfootnote59sym">59</a> <i>See</i> <i>FICCI Suggestions on Discussion Paper on Utility Model</i> available at <a href="http://www.ficci.com/Sedocument/20179/UM.pdf">http://www.ficci.com/Sedocument/20179/UM.pdf</a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote60">
<p><a href="#sdfootnote60anc" name="sdfootnote60sym">60</a> <i>See</i> <i>FICCI Suggestions on Discussion Paper on Utility Model</i> available at <a href="http://www.ficci.com/Sedocument/20179/UM.pdf">http://www.ficci.com/Sedocument/20179/UM.pdf</a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote61">
<p><a href="#sdfootnote61anc" name="sdfootnote61sym">61</a> <i>See</i> <i>Utility Model: A Tool for Economic and Technological Development: A Case Study of Japan</i> available at <a href="http://www.ipindia.nic.in/research_studies/finalreport_april2007.pdf">http://www.ipindia.nic.in/research_studies/finalreport_april2007.pdf</a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote62">
<p><a href="#sdfootnote62anc" name="sdfootnote62sym">62</a> U. Suthersanen, <i>Utility Models and Innovation in Developing Countries, International Center for Trade and Sustainable Development </i>(ICTSD), Issue Paper No. 13 (2006), available at <a href="http://www.unctad.org/en/docs/iteipc20066_en.pdf">http://www.unctad.org/en/docs/iteipc20066_en.pdf</a> , (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote63">
<p><a href="#sdfootnote63anc" name="sdfootnote63sym">63</a> <i>See</i> <i>China's great leap forward in patents</i> , available at <a href="http://www.ipwatchdog.com/2013/04/04/chinas-great-leap-forward-in-patents/id=38625/"> http://www.ipwatchdog.com/2013/04/04/chinas-great-leap-forward-in-patents/id=38625/ </a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote64">
<p><a href="#sdfootnote64anc" name="sdfootnote64sym">64</a> Will Knight, <i>Wheel Patented in Australia</i>, New Scientist (July 3, 2001), <a href="http://www.newscientist.com/article/dn965-wheel-patented-in-australia.html"> http://www.newscientist.com/article/dn965-wheel-patented-in-australia.html </a> .</p>
</div>
<div id="sdfootnote65">
<p><a href="#sdfootnote65anc" name="sdfootnote65sym">65</a> Keith E. Maskus, <i>Beyond the Treaties: A Symposium on Compliance with International Intellectual Property </i>Law, February 6, 2000.</p>
</div>
<div id="sdfootnote66">
<p><a href="#sdfootnote66anc" name="sdfootnote66sym">66</a> U. Suthersanen, <i>Utility Models and Innovation in Developing Countries</i>, International Center for Trade and Sustainable Development (ICTSD), Issue Paper No. 13 (2006), available at <a href="http://www.unctad.org/en/docs/iteipc20066_en.pdf">http://www.unctad.org/en/docs/iteipc20066_en.pdf</a> , (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote67">
<p><a href="#sdfootnote67anc" name="sdfootnote67sym">67</a> IPR Think Tank, National IPR Policy (First Draft) at page 1.</p>
</div>
<div id="sdfootnote68">
<p><a href="#sdfootnote68anc" name="sdfootnote68sym">68</a> <b>¶</b> 2.3 IPR Think Tank, National IPR Policy (First Draft) at page 10.</p>
</div>
<div id="sdfootnote69">
<p><a href="#sdfootnote69anc" name="sdfootnote69sym">69</a> <i>See </i> <a href="http://mhrd.gov.in/technical-education-1">http://mhrd.gov.in/technical-education-1</a> (last accessed 30 January, 2015).</p>
</div>
<div id="sdfootnote70">
<p><a href="#sdfootnote70anc" name="sdfootnote70sym">70</a> <i>See</i> <i>'Expert Group Report on Role and Strategic Use of IPR (Intellectual Property Rights) in International Research Collaborations'</i> by European Commission 'available at <a href="http://ec.europa.eu/research/era/pdf/ipr-eur-20230_en.pdf">http://ec.europa.eu/research/era/pdf/ipr-eur-20230_en.pdf</a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote71">
<p style="text-align: justify; "><a href="#sdfootnote71anc" name="sdfootnote71sym">71</a> <i>See</i> <i>'Ministry of Science makes Open Access to Research Mandatory</i> ', available at <a href="http://cis-india.org/news/down-to-earth-july-16-2014-aparajita-singh-ministry-of-science-makes-open-access-to-research-mandatory"> http://cis-india.org/news/down-to-earth-july-16-2014-aparajita-singh-ministry-of-science-makes-open-access-to-research-mandatory </a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote72">
<p style="text-align: justify; "><a href="#sdfootnote72anc" name="sdfootnote72sym">72</a> DBT and DST Open Access Policy - Policy on Open Access to DBT and DST Funded Research, Department of Biotechnology and Department of Science and Technology, Ministry of Science and Technology, Government of India.</p>
</div>
<div id="sdfootnote73">
<p><a href="#sdfootnote73anc" name="sdfootnote73sym">73</a> <i>Id.</i></p>
</div>
<div id="sdfootnote74">
<p><a href="#sdfootnote74anc" name="sdfootnote74sym">74</a> <i>Id.</i></p>
</div>
<div id="sdfootnote75">
<p><a href="#sdfootnote75anc" name="sdfootnote75sym">75</a> <i>Id.</i></p>
</div>
<div id="sdfootnote76">
<p><a href="#sdfootnote76anc" name="sdfootnote76sym">76</a> IPR Think Tank, National IPR Policy (First Draft) at page 11.</p>
</div>
<div id="sdfootnote77">
<p><a href="#sdfootnote77anc" name="sdfootnote77sym">77</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote78">
<p><a href="#sdfootnote78anc" name="sdfootnote78sym">78</a> IPR Think Tank, National IPR Policy (First Draft) at pages 10, 11.</p>
</div>
<div id="sdfootnote79">
<p><a href="#sdfootnote79anc" name="sdfootnote79sym">79</a> IPR Think Tank, National IPR Policy (First Draft) at page 12.</p>
</div>
<div id="sdfootnote80">
<p><a href="#sdfootnote80anc" name="sdfootnote80sym">80</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote81">
<p style="text-align: justify; "><a href="#sdfootnote81anc" name="sdfootnote81sym">81</a> The Doha Declaration on the TRIPS Agreement and Public Health and the Contradictory Trend in Bilateral and Regional Free Trade Agreements (2004), Available at http://www.quno.org/geneva/pdf/ec onomic/Occasional/TRIPS-Public-Health-FTAs.pdf.</p>
</div>
<div id="sdfootnote82">
<p style="text-align: justify; "><a href="#sdfootnote82anc" name="sdfootnote82sym">82</a> World Health Organization, Report of the Commission on Intellectual Property Rights, Innovation and Public Health, Recommendation 4.26 (2006), available at http://www.who.int/intellectualproperty/ documents/thereport/CIPIHReport23032006.pdf [hereinafter WHO].</p>
</div>
<div id="sdfootnote83">
<p><a href="#sdfootnote83anc" name="sdfootnote83sym">83</a> Fifty-Seventh World Health Assembly, May17-22,2004, (May 22, 2004), available at http:// apps.who.int/gb/ebwha/pdf_files/WHA57/A57_R14-en.pdf;</p>
</div>
<div id="sdfootnote84">
<p><a href="#sdfootnote84anc" name="sdfootnote84sym">84</a> Preamble, Articles 7, 8, TRIPS Agreement, 1994.</p>
</div>
<div id="sdfootnote85">
<p><a href="#sdfootnote85anc" name="sdfootnote85sym">85</a> <b>¶</b> 3.2 IPR Think Tank, National IPR Policy (First Draft) at page 12.</p>
</div>
<div id="sdfootnote86">
<p><a href="#sdfootnote86anc" name="sdfootnote86sym">86</a> <b>¶</b> 3.6 IPR Think Tank, National IPR Policy (First Draft) at page 13.</p>
</div>
<div id="sdfootnote87">
<p><a href="#sdfootnote87anc" name="sdfootnote87sym">87</a> <i>See</i> <i>'Open Standards Policy'</i> , available at <a href="http://cis-india.org/news/open-standards-policy">http://cis-india.org/news/open-standards-policy</a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote88">
<p><a href="#sdfootnote88anc" name="sdfootnote88sym">88</a> <i>See</i> <i>'The BIS, Standards and Copyright'</i> , available at <a href="http://spicyip.com/2014/11/the-bis-standards-and-copyright.html">http://spicyip.com/2014/11/the-bis-standards-and-copyright.html</a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote89">
<p style="text-align: justify; "><a href="#sdfootnote89anc" name="sdfootnote89sym">89</a> <i>See</i> <i>CIS' Letter for Establishment of Patent Pool for Low-cost Access Devices through Compulsory Licenses</i> , available at <a href="http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices"> <span>http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices</span> </a> (last accessed January 29, 2015).</p>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy'>http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy</a>
</p>
No publishernehaaCall for CommentsAccess to KnowledgeIntellectual Property RightsFeaturedHomepage2015-02-09T00:59:10ZBlog EntryPreliminary Submission on "Internet Governance Issues" to the Associated Chambers of Commerce & Industry of India
http://editors.cis-india.org/internet-governance/blog/preliminary-submission-on-internet-governance-issues-to-assocham
<b>On January 30, 2015, Associated Chambers of Commerce & Industry of India (ASSOCHAM) held a consultation on Internet governance. A committee was set up to draft a report on Internet governance, with a focus on issues relevant to India. The Centre for Internet and Society (CIS) is represented on the committee, and has provided its preliminary comments to ASSOCHAM.</b>
<p style="text-align: justify; ">ASSOCHAM convened a meeting of its members and other stakeholders, at which CIS was represented. At this meeting, inputs were sought on Internet governance issues relevant for India, on which the industry body proposed to make comments to the Ministry of External Affairs, Government of India. Such a discussion, proposing to consolidate the views of ASSOCHAM members in consultation with other stakeholders, is a commendable move. This submission presents preliminary comments from the Centre for Internet and Society (CIS) in light of ASSOCHAM's consultation on Internet governance.</p>
<p style="text-align: justify; "><b>I. </b> <b><span>About CIS</span></b></p>
<p style="text-align: justify; "><b>1. </b> CIS is a non-profit research organization that works, <i>inter alia</i>, on issues relating to privacy, freedom of expression, intermediary liability and internet governance, access to knowledge, open data and open standards, intellectual property law, accessibility for persons with disabilities, and engages in academic research on the budding Indian disciplines of digital natives and digital humanities.</p>
<p style="text-align: justify; "><b>2. </b> CIS engages in international and domestic forums for Internet governance. We are a Sector-D member of the International Telecommunications Union (ITU),<a href="#_ftn1" name="_ftnref1">[1]</a> and participated in the World Conference on International Telecommunications (WCIT), 2012 (Dubai) <a href="#_ftn2" name="_ftnref2">[2]</a> and the Plenipotentiary Conference, 2014 (Busan).<a href="#_ftn3" name="_ftnref3">[3]</a> We have also participated in the WSIS+10 Multistakeholder Preparatory Platform (MPP)<a href="#_ftn4" name="_ftnref4">[4]</a> and the WSIS+10 High Level Event, organized by the ITU.<a href="#_ftn5" name="_ftnref5">[5]</a></p>
<p style="text-align: justify; "><b>3. </b> CIS is also a member of the Non-Commercial Users Constituency (NCUC) at ICANN. Pranesh Prakash, our Policy Director, held a position on the NCUC Executive Committee from December 2013 to November 2014.<a href="#_ftn6" name="_ftnref6">[6]</a></p>
<p style="text-align: justify; "><b>4. </b> CIS has been engaging at the Internet Governance Forum (IGF) since 2008, and has organized and participated in over 60 panels to date.<a href="#_ftn7" name="_ftnref7">[7]</a> We have also organized panels at the Asia-Pacific Regional IGF (APrIGF). <a href="#_ftn8" name="_ftnref8">[8]</a> Our Executive Director Sunil Abraham is a member of the Multistakeholder Advisory Group (MAG) for the India-IGF, and has attended in its meetings.<a href="#_ftn9" name="_ftnref9">[9]</a> We are also in the process of developing international principles for intermediary liability, in collaboration with international civil society organisations like EFF and Article19. <a href="#_ftn10" name="_ftnref10">[10]</a></p>
<p style="text-align: justify; "><b>II. </b> <b><span>Structure of Submission</span></b></p>
<p style="text-align: justify; "><b>5. </b> In this submission, we identify issues in Internet governance where engagement from and within India is necessary. In particular, brief descriptions of issues such as freedom of expression and privacy online, cyber-security, critical Internet resources and ICANN, multistakeholderism and net neutrality are provided.</p>
<p style="text-align: justify; "><b>III. </b> <b><span>Internet Governance Issues</span></b></p>
<p style="text-align: justify; "><b><span> </span></b></p>
<p style="text-align: justify; "><b>6. </b> The history of the Internet is unique, in that it is not exclusively government-regulated. Though governments regulate the Internet in many ways (for instance, by ordering website blocking or filtering, licensing of ISPs, encryption controls, investment caps, etc.), the running of the Internet is largely in the hands of private businesses, technical organisations and end-users.</p>
<p style="text-align: justify; "><b>7. </b> International processes like the World Summit on Information Society (WSIS), and forums such as ICANN, the ITU, the IGF and the UN are involved in governing in the Internet in many ways. Regional organisations like the OECD, APEC and the Shanghai Cooperation Organisation (SCO) are also involved (for instance, in cyber-security matters).</p>
<p style="text-align: justify; "><b>8. </b> The issues surrounding Internet governance are many, and range from telecom infrastructure and technical coordination to human rights and access to information.</p>
<p style="text-align: justify; "><b><i><span>Rights Online</span></i></b></p>
<p style="text-align: justify; "><b>9. </b> The status of 'human rights online' has come under discussion, with the <a href="http://netmundial.br/wp-content/uploads/2014/04/NETmundial-Multistakeholder-Document.pdf">NETmundial Outcome Document</a> affirming that offline rights must also be protected online. These issues are important in the context of, among others, the large scale violations of privacy in light of the Snowden Revelations,<a href="#_ftn11" name="_ftnref11">[11]</a> and increased instances of website blocking and takedowns in different parts of the world.<a href="#_ftn12" name="_ftnref12">[12]</a></p>
<p style="text-align: justify; "><b>10. </b> Internationally, issues of freedom of speech, privacy and access or the digital divide (though it is debatable that the latter is a human right) are discussed at the UN Human Rights Council, such as the <a href="http://geneva.usmission.gov/2012/07/05/internet-resolution/">resolution on human rights and the Internet</a>, and the UN Human Rights Commissioner's <a href="http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/Documents/A.HRC.27.37_en.pdf">report on the right to privacy in the digital age</a> , which discusses the need for checks and balances on digital mass surveillance. During the Universal Periodic Review of India in 2012, India noted a <a href="http://www.upr-info.org/database/index.php?limit=0&f_SUR=77&f_SMR=All&order=&orderDir=ASC&orderP=true&f_Issue=All&searchReco=&resultMax=100&response=&action_type=&session=&SuRRgrp=&SuROrg=&SMRRgrp=&SMROrg=&pledges=RecoOnly"> recommendation from Sweden </a> to " <i> ensure that measures limiting freedom of expression on the internet is based on clearly defined criteria in accordance with international human rights standard </i> ".</p>
<p style="text-align: justify; "><b>11. </b> Freedom of speech and privacy are also relevant for discussion at the ITU.<a href="#_ftn13" name="_ftnref13">[13]</a> For instance, at the Plenipotentiary meeting in 2014 (Busan), India proposed a resolution that sought, among other things, complete traceability of all Internet communications. <a href="#_ftn14" name="_ftnref14">[14]</a> This has implications for privacy that are not yet addressed by our domestic laws. A Privacy Bill and such other protections are only in the pipeline in India.<a href="#_ftn15" name="_ftnref15">[15]</a></p>
<p style="text-align: justify; "><b>12. </b> At ICANN as well, the <a href="http://en.wikipedia.org/wiki/DNS_root_zone">root zone management</a> function may affect freedom of expression. If, for instance, a top level domain (TLD) such as <b>.com </b>is erased from the root zone file, hundreds of thousands of websites and their content can be wiped from the World Wide Web. A TLD can be erased by Verisign if a request to that effect is raised or accepted by ICANN, and signed off on by the National Telecommunications and Information Administration (NTIA) of the US government. Similarly,<a href="http://whois.icann.org/en/about-whois">the WHOIS database</a>, which contains information about the holders of domain names and IP addresses, has <a href="http://en.wikipedia.org/wiki/Domain_privacy">implications for privacy and anonymity</a>.</p>
<p style="text-align: justify; "><b>13. </b> In India, the judiciary is currently adjudicating the constitutionality of several provisions of the Information Technology Act, 2000 (as amended in 2008), including S. 66A, S. 69A and S. 79. A series of writ petitions filed, among others, by the Internet Service Providers Association of India (ISPAI) and Mouthshut.com, relate to the constitutionality of the nature of content controls on the Internet, as well as intermediary liability. <a href="#_ftn16" name="_ftnref16">[16]</a></p>
<p style="text-align: justify; "><b>14. </b> A judgment on the constitutionality of Ss. 66A, 69A and 79 are crucial for end-users and citizens, as well as companies in the Internet ecosystem. For instance, an uncertain intermediary liability regime with penalties for intermediaries - S. 79, IT Act and Intermediaries Guidelines Rules, 2011 - disincentivises ISPs, online news websites and other content providers like Blogger, Youtube, etc. from allowing free speech to flourish online. <a href="#_ftn17" name="_ftnref17">[17]</a> The ongoing cases of <i>Kamlesh Vaswani </i>v. <i>UOI </i>and <i>Sabu George </i>v. <i>UOI</i> also have consequences for ISPs and search engines, as well as for fundamental rights.<a href="#_ftn18" name="_ftnref18">[18]</a> International and domestic engagement is desirable, including in consultations with the Law Commission of India (for instance, the <a href="http://www.lawcommissionofindia.nic.in/views/Consultation%20paper%20on%20media%20law.doc">consultation on media laws</a>).</p>
<p style="text-align: justify; "><b><i><span>Critical Internet Resources</span></i></b></p>
<p style="text-align: justify; "><b>15. </b> Critical Internet Resources form the backbone of the Internet, and include management of IP addresses, the domain name system (DNS) and the root zone. <a href="#_ftn19" name="_ftnref19">[19]</a> ICANN, a global non-profit entity incorporated in California, manages the IANA functions (Internet Assigned Numbers Authority) for the global Internet. These functions include allocating the global pool of IP addresses (IPv4 and IPv6) to Regional Internet Registries (RIRs), administering the domain name system and maintaining a protocol registry.</p>
<p style="text-align: justify; "><b>16. </b> At present, the IANA functions are performed under a <a href="http://www.ntia.doc.gov/page/iana-functions-purchase-order">contract with the NTIA</a>. On March 14, 2014, the <a href="http://www.ntia.doc.gov/press-release/2014/ntia-announces-intent-transition-key-internet-domain-name-functions">NTIA announced</a> its intention to transition oversight of the IANA functions to an as-yet-undetermined "global multi-stakeholder body". The deadline for this transition is September 30, 2015, though the NTIA has <a href="http://www.ntia.doc.gov/speechtestimony/2015/remarks-assistant-secretary-strickling-state-net-conference-1272015">expressed its willingness</a> to renew the IANA contract and extend the deadline. ICANN was charged with convening the transition process, and set up the <a href="https://www.icann.org/stewardship/coordination-group">IANA Coordination Group</a> (ICG), a team of 30 individuals who will consolidate community input to create a transition proposal. At the moment, the<a href="https://www.icann.org/en/system/files/files/cwg-naming-transition-01dec14-en.pdf">names (CWG-Names)</a>,<a href="https://www.nro.net/wp-content/uploads/ICG-RFP-Number-Resource-Proposal.pdf">numbers (CRISP)</a> and <a href="http://datatracker.ietf.org/doc/draft-ietf-ianaplan-icg-response/">protocols (IETF)</a> communities are debating existing draft proposals. A number of new entities with which ICANN will have contractual arrangements have been proposed. At ICANN's meetings in Singapore (February 7-12, 2015) and Buenos Aires (June 2015), these proposals will be discussed.</p>
<p style="text-align: justify; "><b>17. </b> At the same time, a parallel track to examine ICANN's own transparency and accountability has been introduced. The <a href="https://community.icann.org/display/acctcrosscomm/CCWG+on+Enhancing+ICANN+Accountability">CCWG-Accountability</a> is considering ICANN's accountability in two Workstreams: first, in light of the IANA transition and second, a revision of ICANN's policies and by-laws to strengthen accountability. ICANN's accountability and transparency are crucial to its continued role in Internet governance.</p>
<p style="text-align: justify; "><b>18. </b> Several issues arise here: Should ICANN continue to remain in the US? Should the IANA Functions Department be moved into a separate entity from ICANN? Ought ICANN's by-laws be amended to create oversight over the Board of Directors, which is now seen to have consolidated power? Ought ICANN be more transparent in its financial and operational matters, proactively and reactively?</p>
<p style="text-align: justify; "><b>19. </b> It is, for instance, beneficial to the stability of the Internet and to India if the IANA department is separate from ICANN - this will ensure a<a href="http://editors.cis-india.org/internet-governance/blog/cis-india.org/internet-governance/blog/icann-accountability-iana-transition-and-open-questions">separation of powers</a>. Second, <a href="http://cis-india.org/internet-governance/blog/cis-comments-enhancing-icann-accountability">stronger transparency and accountability mechanisms</a> are necessary for ICANN; it is a growing corporate entity performing a globally Internet function. As such, <a href="http://cis-india.org/internet-governance/blog/cis-receives-information-on-icanns-revenues-from-domain-names-fy-2014">granular information</a> about ICANN's revenues and expenses should be made public. See, for ex.,<a href="https://www.icann.org/en/system/files/files/cis-request-18dec14-en.pdf">CIS' request</a> for ICANN's expenses for travel and meetings, and <a href="https://www.icann.org/en/system/files/files/cis-response-17jan15-en.pdf">ICANN's response</a> to the same.</p>
<p style="text-align: justify; "><b>20. </b> The most ideal forum to engage in this is ICANN, and within India, working groups on Internet governance at the Ministry level. As such, ASSOCHAM may seek open, transparent and inclusive consultations with the relevant departments of the Government (the Ministry of External Affairs, DeitY, Department of Telecommunications). At ICANN, industry bodies can find representation in the Business Constituency or the Commercial Stakeholders Group. Additionally, comments and proposals can be made to the ICG and the CCWG-Accountability by anyone.</p>
<p style="text-align: justify; "><b><i><span>Cyber-security </span></i></b></p>
<p style="text-align: justify; "><b>21. </b> Cyber-security is often used as an umbrella-term, covering issues ranging from network security (DNSSEC and the ICANN domain), cyber-crime, and cyber-incidents such as the <a href="http://timesofindia.indiatimes.com/tech/it-services/How-to-fight-cyber-war-Estonia-shows-the-way/articleshow/24274994.cms"> Distributed Denial of Service attacks </a> on Estonian public institutions and the <a href="http://spectrum.ieee.org/telecom/security/the-real-story-of-stuxnet">Stuxnet virus</a> that attacked Iran's nuclear programme. Within the ITU, spam and child safety online are also assessed as security issues (See <a href="http://www.itu.int/en/ITU-T/about/groups/Pages/sg17.aspx">Study Group 17 under ITU-T</a>).</p>
<p style="text-align: justify; "><b>22. </b> At the international level, the UN Group of Governmental Experts has <a href="http://www.un.org/disarmament/topics/informationsecurity/">published three reports</a> to date, arguing also that in cyber-security incidents, international humanitarian law will apply. International humanitarian law applies during armed attacks on states, when special rules apply to the treatment of civilians, civilian and military buildings, hospitals, wounded soldiers, etc.</p>
<p style="text-align: justify; "><b>23. </b> The ITU also launched a <a href="http://www.itu.int/en/action/cybersecurity/Pages/gca.aspx">Global Cybersecurity Agenda</a> in 2007, aiming at international cooperation. Such cooperative methods are also being employed at the OSCE, APEC and the SCO, which have developed drafts of <a href="http://www.osce.org/pc/109168?download=true">Confidence Building Measures</a>. The Global Conferences on Cyberspace (London 2011, Budapest 2012, Seoul 2013, The Hague 2015) resulted in, <i>inter alia</i>, the <a href="http://conventions.coe.int/Treaty/EN/Treaties/Html/185.htm">Budapest Convention on Cybercrime</a>. India has not ratified the Convention, and remains tight-lipped about its security concerns.</p>
<p style="text-align: justify; "><b>24. </b> Surveillance and monitoring of online communications is a crucial issue in this regard. In India, the surveillance power finds its source in S. 5, Telegraph Act, 1888, and the <a href="http://cis-india.org/internet-governance/resources/rule-419-a-indian-telegraph-rules-1951">Rule 419A of the Telegraph Rules, 1951</a>. Further, S. 69 of the Information Technology Act, 2000 and the <a href="http://cis-india.org/internet-governance/resources/it-procedure-and-safeguards-for-interception-monitoring-and-decryption-of-information-rules-2009"> Interception Rules, 2009 </a> enable the government and authorized officers to intercept and monitor Internet traffic on certain grounds. Information regarding the implementation of these Rules is scant.</p>
<p style="text-align: justify; "><b>25. </b> In any event, the applicability of targeted surveillance should be <a href="http://cis-india.org/internet-governance/blog/nytimes-july-10-2013-pranesh-prakash-how-surveillance-works-in-india">subject to judicial review</a> , and a balance should be struck between fundamental rights such as freedom of speech and privacy and the needs of security. An <a href="http://cis-india.org/internet-governance/blog/uk-interception-of-communications-commissioner-a-model-of-accountability">accountability model</a> such as that present in the UK for the Interception of Communications Commissioner may provide valuable insight.</p>
<p style="text-align: justify; "><b>26. </b> In India, the government does not make public information regarding its policies in cyber-security and cybercrime. This would be welcome, as well as consultations with relevant stakeholders.</p>
<p style="text-align: justify; "><b><i><span>Models of Internet Governance</span></i></b> <b> </b></p>
<p style="text-align: justify; "><b>27. </b> Multi-stakeholderism has emerged as one of the catchphrases in Internet governance. With the display of a multi-stakeholder model at NETmundial (April 2014), controversies and opinions regarding the meaning, substance and benefits of multi-stakeholderism have deepened.</p>
<p style="text-align: justify; "><b>28. </b> The debates surrounding stakeholder-roles in Internet governance began with ¶49 of the Geneva Declaration of Principles and ¶35 of the <a href="http://www.itu.int/wsis/docs2/tunis/off/6rev1.html">Tunis Agenda</a>, which delineated clear roles and responsibilities. It created a 'contributory' multi-stakeholder model, where states held sovereign authority over public policy issues, while business and civil society were contributed to 'important roles' at the 'technical and economic fields' and the 'community level', respectively.</p>
<p style="text-align: justify; "><b>29. </b> As the WGEC meeting (April 30-May 2, 2014) demonstrated, there is as yet no consensus on stakeholder-roles. Certain governments remain strongly opposed to equal roles of other stakeholders, emphasizing their lack of accountability and responsibility. Civil society is similarly splintered, with a majority opposing the Tunis Agenda delineation of stakeholder-roles, while others remain dubious of permitting the private sector an equal footing in public policy-making.</p>
<p style="text-align: justify; "><b>30. </b> The positions in India are similarly divided. While there is appears to be high-level acceptance of "multi-stakeholder models" across industry, academia and civil society, there exists no clarity as to what this means. In simple terms, does a multi-stakeholder model mean that the government should consult industry, civil society, academia and the technical community? Or should decision-making power be split among stakeholders? In fact, the debate is <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2354377">more specific</a>.</p>
<p style="text-align: justify; "><b>31. </b> In India, the Multistakeholder Advisory Group (MAG) for the India-IGF was established in February 2014, and some meetings were held. Unfortunately, neither the minutes of the meetings nor action points (if any) are publicly available.</p>
<p style="text-align: justify; "><b>32. </b> The Indian government's position is more complex. At the 68<sup>th</sup> UN General Assembly session in 2011, India argued for a (multilateral) 50-member UN <a href="http://cis-india.org/internet-governance/blog/india-statement-un-cirp">Committee on Internet-related Policies (CIRP)</a>. However, the Ministry for Communications and Information Technology (MCIT) has, over the years, presented differing views at the IGF and ITU through its two departments: DeitY and DoT. Further, at the meetings of the Working Group on Enhanced Cooperation (WGEC), India has presented <a href="http://unctad.org/Sections/un_cstd/docs/WGEC_IndiaMission.pdf">more nuanced views</a>, suggesting that certain issues remain within the governmental domain (such as cyber-security and child online protection). At the 9<sup>th</sup> IGF (Istanbul, September 2014), Mr. R.S. Sharma of the DeitY <a href="http://www.intgovforum.org/cms/174-igf-2014/transcripts/1977-2014-09-04-ms-evolution-of-the-ig-main-room">echoed such a view</a> of delineated roles for stakeholders.</p>
<p style="text-align: justify; "><b>33. </b> A clear message from the Indian government, on whether it favours multistakeholderism or governmental policy authority for specific issues, would be invaluable in shaping opinion and domestic processes. In any event, a transparent consultative procedure to take into account the views of all stakeholders is desirable.</p>
<p style="text-align: justify; "><b><i><span>Emerging Issues</span></i></b></p>
<p style="text-align: justify; "><i><span>Net Neutrality</span></i></p>
<p style="text-align: justify; "><b>34. </b> In simple terms, net neutrality concerns differential treatment of packets of data by carriers such as ISPs, etc. over networks. The issue has gained international attention following the U.S. FCC's regulatory stance, and the U.S. Court of Appeal's 2014 decision in <a href="http://www.cadc.uscourts.gov/internet/opinions.nsf/3AF8B4D938CDEEA685257C6000532062/$file/11-1355-1474943.pdf">Verizon v. FCC</a>. Though this decision turned on the interpretation of 'broadband providers' under the Communications Act, 1934, net neutrality has since been debated in the US, both <a href="http://techcrunch.com/2015/02/09/fcc-chairman-tom-wheeler-defends-his-net-neutrality-proposal/">by the FCC</a> and other stakeholders. There is no international consensus in sight; the NETmundial Outcome Document <a href="http://netmundial.br/wp-content/uploads/2014/04/NETmundial-Multistakeholder-Document.pdf">recognized</a> net neutrality as an emerging issue (page 11, no. IV).</p>
<p style="text-align: justify; "><b>35. </b> In India, a TRAI consultation on Over-The-Top Services on August 5, 2014 brought concerns of telecom and cellular operators to light. OTTs were seen as hijacking a portion of telcos' revenues, and as lacking consumer protection and privacy safeguards. While these concerns are legitimate, net neutrality regulation is not yet the norm in India. In any event, any such regulation must <a href="http://cis-india.org/telecom/blog/otts-eating-into-our-revenue-telcos-in-india">take into account</a> the consequences of regulation on innovation, competition, and consumer choice, as well as on the freedom of the medium (which may have detrimental impacts freedom of expression).</p>
<p style="text-align: justify; "><b>36. </b> Though net neutrality regulation is being mooted, there is as yet an<a href="http://cis-india.org/internet-governance/blog/collection-of-net-neutrality-definitions">array of definitions</a> of 'net neutrality'. The <a href="http://www.medianama.com/2014/11/223-net-neutrality-telcos-india/">views of telcos themselves differ</a> in India. Further study on the methods of identifying and/or circumventing net neutrality is necessary before a policy position can be taken.</p>
<p style="text-align: justify; "><b>IV. </b> <b><span>Conclusions</span></b></p>
<p style="text-align: justify; "><b>37. </b> CIS welcomes ASSOCHAM's initiative to study and develop industry-wide positions on Internet governance. This note provides brief descriptions of several issues in Internet governance where policy windows are open internationally and domestically. These issues include freedom of expression and privacy under Part III (Fundamental Rights) of the Constitution of India. The Supreme Court's hearing of a set of cases alleging unconstitutionality of Ss. 66A, 69, 69A and 79 (among others) of the IT Act, 2000, as well as consultations on issues such as pornography by the Rajya Sabha Parliamentary Committee and media laws by the Law Commission of India are important in this regard.</p>
<p style="text-align: justify; "><b>38. </b> International and domestic engagement is necessary in the transition of stewardship of the IANA functions, as well as ICANN's own accountability and transparency measures. Similarly, in the area of cyber-security, though several initiatives are afoot internationally, India's engagement has been cursory until now. A concrete position from India's stakeholders, including the government, on these and the question of multi-stakeholderism in Internet governance would be of immense assistance.</p>
<p style="text-align: justify; "><b>39. </b> Finally, net neutrality is an emerging issue of importance to industry's revenues and business models, and to users' rights such as access to information and freedom of expression.</p>
<div style="text-align: justify; ">
<hr align="left" size="1" width="100%" />
<div id="ftn1">
<p><a href="#_ftnref1" name="_ftn1">[1]</a> CIS gets ITU-D Sector Membership, <a href="http://goo.gl/PBGKWt">goo.gl/PBGKWt</a> (l.a. 8 Feb. 2015).</p>
</div>
<div id="ftn2">
<p><a href="#_ftnref2" name="_ftn2">[2]</a> Letter for Civil Society Involvement in WCIT, <a href="http://goo.gl/gXpYQD">goo.gl/gXpYQD</a> (l.a. 8 Feb. 2015).</p>
</div>
<div id="ftn3">
<p><a href="#_ftnref3" name="_ftn3">[3]</a> See, ex., Hariharan, <i>What India's ITU Proposal May Mean for Internet Governance</i>, <a href="http://goo.gl/hpWaZn">goo.gl/hpWaZn</a> (l.a. 8 Feb. 2015).</p>
</div>
<div id="ftn4">
<p><a href="#_ftnref4" name="_ftn4">[4]</a> Panday, <i>WSIS +10 High Level Event: Open Consultation Process MPP: Phase Six: Fifth Physical Meeting</i>, <a href="http://goo.gl/3XR24X">goo.gl/3XR24X</a> (l.a. 8 Feb. 2015).</p>
</div>
<div id="ftn5">
<p><a href="#_ftnref5" name="_ftn5">[5]</a> Hariharan, <i>WSIS+10 High Level Event: A Bird's Eye Report</i>, <a href="http://goo.gl/8XkwyJ">goo.gl/8XkwyJ</a> (l.a. 8 Feb. 2015).</p>
</div>
<div id="ftn6">
<p><a href="#_ftnref6" name="_ftn6">[6]</a> Pranesh Prakash elected as Asia-Pacific Representative to the Executive Committee of NonCommercial Users Constituency, <a href="http://goo.gl/iJM7C0">goo.gl/iJM7C0</a> (l.a. 8 Feb. 2015).</p>
</div>
<div id="ftn7">
<p><a href="#_ftnref7" name="_ftn7">[7]</a> See, ex., <i>CIS@IGF 2014</i>, <a href="http://goo.gl/Werdiz">goo.gl/Werdiz</a> (l.a. 8 Feb. 2015).</p>
</div>
<div id="ftn8">
<p><a href="#_ftnref8" name="_ftn8">[8]</a> <i>Multi-stakeholder Internet Governance: The Way Ahead</i> , <a href="http://goo.gl/NuktNi">goo.gl/NuktNi</a>; <i>Minimising legal risks of online Intermediaries while protecting user rights,</i> <a href="http://goo.gl/mjQyww">goo.gl/mjQyww</a> (l.a. 8 Feb. 2015).</p>
</div>
<div id="ftn9">
<p><a href="#_ftnref9" name="_ftn9">[9]</a> First Meeting of the Multistakeholder Advisory Group for India Internet Governance Forum, <a href="http://goo.gl/NCmKRp">goo.gl/NCmKRp</a> (l.a. 8 Feb. 2015).</p>
</div>
<div id="ftn10">
<p><a href="#_ftnref10" name="_ftn10">[10]</a> See Zero Draft of Content Removal Best Practices White Paper, <a href="http://goo.gl/RnAel8">goo.gl/RnAel8</a> (l.a. 8 Feb. 2015).</p>
</div>
<div id="ftn11">
<p><a href="#_ftnref11" name="_ftn11">[11]</a> See, ex., <i>UK-US surveillance regime was unlawful 'for seven years'</i>, <a href="http://goo.gl/vG8W7i">goo.gl/vG8W7i</a> (l.a. 9 Feb. 2015).</p>
</div>
<div id="ftn12">
<p><a href="#_ftnref12" name="_ftn12">[12]</a> See, ex., <i>Twitter: Turkey tops countries demanding content removal</i>, <a href="http://goo.gl/ALyO3B">goo.gl/ALyO3B</a> (l.a. 9 Feb. 2015).</p>
</div>
<div id="ftn13">
<p><a href="#_ftnref13" name="_ftn13">[13]</a> See, ex., <i>The ITU convenes a programme on Child Online Protection</i>, <a href="http://goo.gl/qJ4Es7">goo.gl/qJ4Es7</a> (l.a. 9 Feb. 2015).</p>
</div>
<div id="ftn14">
<p><a href="#_ftnref14" name="_ftn14">[14]</a> Hariharan, <i>Why India's Proposal at the ITU is Troubling for Internet Freedoms</i>, <a href="http://goo.gl/Sxh5K8">goo.gl/Sxh5K8</a> (l.a. 9 Feb. 2015).</p>
</div>
<div id="ftn15">
<p><a href="#_ftnref15" name="_ftn15">[15]</a> Hickok, <i>Report of the Group of Experts on Privacy vs. The Leaked 2014 Privacy Bill</i>, <a href="http://goo.gl/454qA6">goo.gl/454qA6</a> (l.a. 9 Feb. 2015).</p>
</div>
<div id="ftn16">
<p><a href="#_ftnref16" name="_ftn16">[16]</a> See, <i>Supreme Court Of India To Hear Eight IT Act Related Cases On 11th April 2014 - SFLC</i>, <a href="http://goo.gl/XLWsSq">goo.gl/XLWsSq</a> (l.a. 9 Feb. 2015).</p>
</div>
<div id="ftn17">
<p><a href="#_ftnref17" name="_ftn17">[17]</a> See, Dara, <i>Intermediary Liability in India: Chilling Effects on Free Expression on the Internet</i>, <a href="http://goo.gl/bwBT0x">goo.gl/bwBT0x</a> (l.a. 9 Feb. 2015).</p>
</div>
<div id="ftn18">
<p><a href="#_ftnref18" name="_ftn18">[18]</a> See, ex., Arun, <i>Blocking online porn: who should make Constitutional decisions about freedom of speech?</i>,<a href="http://goo.gl/NPdZcK">goo.gl/NPdZcK</a>; Hariharan & Subramanian, <i>Search Engine and Prenatal Sex Determination: Walking the Tight Rope of the Law</i>, <a href="http://goo.gl/xMj4Zw">goo.gl/xMj4Zw</a> (l.a. 9 Feb. 2015).</p>
</div>
<div id="ftn19">
<p><a href="#_ftnref19" name="_ftn19">[19]</a> CSTD, <i>The mapping of international Internet public policy issues</i>, <a href="http://goo.gl/zUWdI1">goo.gl/zUWdI1</a> (l.a. 9 Feb. 2015).</p>
</div>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/preliminary-submission-on-internet-governance-issues-to-assocham'>http://editors.cis-india.org/internet-governance/blog/preliminary-submission-on-internet-governance-issues-to-assocham</a>
</p>
No publishergeethaFeaturedInternet Governance2015-02-12T14:52:04ZBlog EntryOpen Letter to Prime Minister Modi
http://editors.cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi
<b>After the government introduced the "Make in India" and "Digital India" programmes, the air is thick with the promise of reduced imports, new jobs, and goods for the domestic market. In light of the patent wars in India, the government can ill-afford to overlook the patent implications in indigenously manufactured mobile phones. CIS proposes that the Government of India initiate the formation of a patent pool of critical mobile technologies and a five percent compulsory license. </b>
<p dir="ltr" id="docs-internal-guid-741ac7e2-c01d-c02c-db3c-4cf2f2fdf6fc" style="text-align: justify; ">The blog post was <a class="external-link" href="http://www.medianama.com/2015/03/223-digital-india-make-in-india-form-a-patent-pool-of-critical-mobile-technologies-cis-india/">re-published by Medianama</a> on March 24, 2015.</p>
<hr />
<p dir="ltr" style="text-align: justify; ">Honourable Prime Minister Shri Narendra Modi,</p>
<p dir="ltr" style="text-align: justify; ">We at the Centre for Internet and Society support the "<a class="external-link" href="http://www.makeinindia.com/">Make in India</a>" and "<a class="external-link" href="http://deity.gov.in/sites/upload_files/dit/files/Digital%20India.pdf">Digital India</a>" initiatives of the Indian government and share your <a class="external-link" href="https://www.youtube.com/watch?v=w8QLIuABSYk/">vision of a digitally empowered India</a> where “1.2 billion connected Indians drive innovation”, where “access to information knows no barriers”, and where knowledge is the citizens’ power. The government’s plan of incentivising the manufacturing of electronics hardware, including that of mobile phones in the 2015 Union Budget is equally encouraging. Towards this important goal of nation building, the Centre for Internet and Society is researching the patent and copyright implications of Internet-enabled mobile devices that are sold in the Indian market for Rs 6,000 or less.</p>
<p dir="ltr" style="text-align: justify; ">Bolstered by Make in India, several mobile phone manufacturers have started or ramped up their manufacturing facilities in India. Homegrown brands — such as <a href="http://articles.economictimes.indiatimes.com/2015-01-28/news/58546839_1_digital-india-spice-group-indian-cellular-association">Spice</a>, <a href="http://articles.economictimes.indiatimes.com/2015-02-04/news/58795672_1_devices-haridwar-april-2015">Maxx Mobile and Lava</a> — and foreign manufacturers alike are making humongous investments in mobile phone plants. Chip manufacturer <a href="http://www.mediatek.com/en/news-events/mediatek-news/mediatek-launches-rd-center-in-bengaluru/">Mediatek</a>; one of the newest entrants in the Indian smartphone market, <a href="http://timesofindia.indiatimes.com/tech/tech-news/Xiaomi-to-set-up-research-development-centre-in-India/articleshow/46043461.cms">Xiaomi</a>; and telecom company Huawei, all different links in the mobile phone manufacturing chain, are setting up research and development units in India having recognised its potential as a significant market. These developments promise to cut or substitute imports, cater to the domestic market, create millions of jobs, and stem the outflow of money from India.</p>
<p style="text-align: justify; ">However, mobile phone manufacturers, big and small, have also been embroiled in litigation in India for the past few years over patents pertaining to crucial technologies. Micromax, one of the several Indian mobile phone manufacturers with original equipment manufacturers in China <a class="external-link" href="http://delhihighcourt.nic.in/dhcqrydisp_o.asp?pn=57850&yr=2013">was ordered by the Delhi High Court late last year to pay a substantial 1.25 to 2 per cent of the selling price of its devices to Ericsson</a>, which has claimed infringement of eight of its standard essential patents. <a class="external-link" href="http://www.medianama.com/2014/04/223-ericsson-sues-intex-patents/">Intex </a>and Lava, two members of Micromax’s ilk, have been similarly sued and claim to have received the short end of the stick in the form of unreasonable and exorbitant compensations and royalty rates. Chinese budget phone manufacturers operating in India — Xiaomi, OnePlus, and Gionee — also have come under the sledgehammer of sudden suspension of the sale of their devices. The bigger companies such as Asus, Samsung and ZTE have faced the heat of patent litigation as well.</p>
<p dir="ltr" style="text-align: justify; ">The fear of litigation over patent infringement could thwart local innovation. Additionally, the expenses incurred due to litigation and compensation could lead to the smaller manufacturers shutting shop or passing on their losses to their consumers, and in turn, driving the price points of Internet-enabled mobile devices out of the reach of many. It could also become a stumbling block to the success of ambitious plans of the government, such as the one to provide free <a href="http://www.firstpost.com/business/modis-big-bang-digital-india-plan-2500-cities-to-get-free-4g-level-wifi-2060449.html">WiFi in 2,500 cities and towns</a> across India.</p>
<p dir="ltr" style="text-align: justify; "><b>We propose that the Government of India initiate the formation of a patent pool of critical mobile technologies and mandate a five percent compulsory license. </b>Such a pool would possibly avert patent disputes by ensuring that the owners' rights are not infringed on, that budget manufacturers are not put out of business owing to patent feuds, and that consumers continue to get access to inexpensive mobile devices. Several countries including the United States regularly issue compulsory licenses on patents in the pharmaceutical, medical, defence, software, and engineering domains for reasons of public policy, or to thwart or correct anti-competitive practices.<a href="#fn1" name="fr1">[1] </a> <a href="#fn2" name="fr2">[2] </a> Unfortunately, we did not receive a response <a href="http://editors.cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices" class="internal-link" title="Letter for Establishment of Patent Pool for Low-cost Access Devices through Compulsory Licenses">from the previous government to our suggestion</a> of establishing such a patent pool. We believe that our proposal falls in line with your ambitious programmes designed to work towards your vision of India, and we hope that you would consider it.</p>
<p dir="ltr" style="text-align: justify; ">Yours truly,<br />Rohini Lakshané,<br />Programme Officer,<br />The Centre for Internet and Society</p>
<p style="text-align: justify; ">Copies to:</p>
<ol>
<li>Shri Arun Jaitley, Minister for Finance</li>
<li>Shri Rajiv Mehrishi, Secretary to Ministry of Finance</li>
<li>Smt. Smriti Zubin Irani, Minister for Human Resource Development</li>
<li>Shri Satyanarayan Mohanty, Secretary to Ministry of Human Resources Development</li>
<li>Smt. Nirmala Sitharaman, Minister for Commerce and Industry</li>
<li>Shri Amitabh Kant, Secretary to Department of Industrial Policy and Promotion</li>
<li>Shri Ravi Shankar Prasad, Minister for Communication and Information Technology</li>
<li>Shri Rakesh Garg, Secretary to Department of Telecommunications</li>
<li>Shri R. S. Sharma, Secretary for Department of Electronics and Information Technology</li>
</ol>
<p> </p>
<p>Also read: <a class="external-link" href="http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies">FAQ: CIS' Proposal for Compulsory Licensing of Critical Mobile Technologies </a></p>
<hr />
<p style="text-align: justify; ">[<a href="#fr1" name="fn1">1</a>]. <span id="docs-internal-guid-58b7fb82-db2b-7be3-83cf-b5045255b88c">James Love, Knowledge Ecology International (KEI) written comments and notice of intent to testify at the Special 301 Public Hearing, Page 6, "US use of compulsory licensing",<a class="moz-txt-link-freetext" href="http://keionline.org/sites/default/files/KEI_2014_Special301_7Feb20014_FRComments.pdf">http://keionline.org/sites/default/files/KEI_2014_Special301_7Feb20014_FRComments.pdf</a>, February 7, 2014, Last accessed February 10, 2015.</span></p>
<p style="text-align: justify; ">[<a href="#fr2" name="fn2">2</a>]. <span id="docs-internal-guid-58b7fb82-db2b-7be3-83cf-b5045255b88c">Colleen Chien, Cheap Drugs at What Price to Innovation, Does the Compulsory Licensing of Pharmaceuticals Hurt Innovation, Berkeley Technology Law Journal, Volume 18, Issue 3, Article 3, Page 862, "Compulsory licensing in the United States", <a class="moz-txt-link-freetext" href="http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1429&context=btlj">http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1429&context=btlj</a>, June 2003, Last accessed February 10, 2015.</span></p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi'>http://editors.cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi</a>
</p>
No publisherrohiniFeaturedHomepageAccess to KnowledgePervasive Technologies2016-02-14T04:39:01ZBlog EntryCall for Essays: Studying Internet in India
http://editors.cis-india.org/raw/call-for-essays-studying-internet-in-india
<b>As Internet makes itself comfortable amidst everyday lives in India, it becomes everywhere and everyware, it comes in 40 MBPS Unlimited and in chhota recharges – and even in zero flavour – the Researchers at Work (RAW) programme at the Centre for Internet and Society invites abstracts for essays that explore what it means to study Internet(s) in India today.</b>
<p> </p>
<p>We are interested in the many experiences of Internet(s) in India; its histories and archaeologies; how we use it to read, write, create, relate, learn, and share; the data that is produced, and the data that is consumed; the spaces that are created, and the spaces that are inhabited; the forms that political expressions take on the Web; and of course, where and how should one be studying Internet(s) in India?</p>
<p>This call is for researchers, workers, and others interested in closely – or from a distance – commenting on these topics and questions.</p>
<p>Please send abstracts (200 words) to <a href="mailto:raw@cis-india.org">raw@cis-india.org</a> by <strong>Sunday, April 26, 2015</strong>. The subject of the email should be 'Studying Internet in India.'</p>
<p>We will select up to 10 abstracts and announce them on <strong>Friday, May 01, 2015</strong>.</p>
<p>The selected authors will be asked to submit the final longform essay (2,500-3,000 words) by <strong>Sunday, May 31, 2015</strong>. The final essays will be published on the RAW Blog. The authors will be offered an honourarium of Rs. 5,000.</p>
<p>We understand that not all essays can be measured in words. The authors are very much welcome to work with text, images, sounds, videos, code, and other mediatic forms that the Internet offers. We will not be running a Word Count on the final 'essay.' The basic requirement is that the 'essay' must offer an <em>argument</em> – through text, or otherwise.</p>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/raw/call-for-essays-studying-internet-in-india'>http://editors.cis-india.org/raw/call-for-essays-studying-internet-in-india</a>
</p>
No publishersumandroInternet StudiesRAW BlogFeaturedNoticesResearchers at Work2015-08-28T07:09:39ZBlog EntryThe Technology behind Big Data
http://editors.cis-india.org/internet-governance/blog/technology-behind-big-data
<b>The authors undertakes a high-level literature review of the most commonly used technological tools and processes in the big data life cycle. The big data life cycle is a conceptual construct that can be used to study the various stages that typically occur in collecting, storing and analysing big data, along with the principles that can govern these processes.</b>
<p> </p>
<h4><a class="external-link" href="http://cis-india.org/internet-governance/files/technology-behind-big-data.pdf/view">Download the Paper</a> (PDF, 277 kb)</h4>
<hr />
<h2 style="text-align: justify;">Introduction</h2>
<p style="text-align: justify;">Defining big data is a disputed area in the field of computer science<a name="_ftnref1" href="#_ftn1"><sup><sup>[1]</sup></sup></a>, there is some consensus on a basic structure to its definition<a name="_ftnref2" href="#_ftn2"><sup><sup>[2]</sup></sup></a>. Big data is data that is collected in the form of datasets that has three main criteria: size, variety & velocity, all of which operate at an immense scale<a name="_ftnref3" href="#_ftn3"><sup><sup>[3]</sup></sup></a>. It is ‘big’ in size, often running into petabytes of information, has vast variety within its components, and is created, captured and analysed at an incredibly rapid velocity. All of this also makes big data difficult to handle using traditional technological tools and techniques.</p>
<p style="text-align: justify;">This paper will attempt to perform a high-level literature review of the most commonly used technological tools and processes in the big data life cycle. The big data life cycle is a conceptual construct that can be used to study the various stages that typically occur in collecting, storing and analysing big data, along with the principles that can govern these processes. The big data life cycle consists of four components, which will also be the key structural points of the paper, namely: Data Acquisition, Data Awareness, Data Analytics & Data Governance.<strong><sup>4</sup> </strong>The paper will focus on the aspects that the author believes are relevant for analysing the technological impact of big data on both technology itself and society at large.</p>
<p style="text-align: justify;"><strong>Scope: </strong>The scope of the paper is to study the technology used in big data using the "Life Cycle of Big Data" as model structure to categorise & study the vast range of technologies that are involved in big data. However, the paper will be limited to the study of technology related directly to the big data life cycle. It shall specifically exclude the use/utilisation of big data from its scope since big data is most often being fed into other, unrelated technologies for consumption leading to rather limitless possibilities.</p>
<p style="text-align: justify;"><strong>Goal:</strong> Goal of the paper is twofold: a.) to use the available literature on the technological aspects of big data, to perform a brief overview of the technology in the field and b.) to frame the relevant research questions for studying the technology of big data and its possible impact on society.</p>
<h2 style="text-align: justify;">Data Acquisition</h2>
<p style="text-align: justify;">Acquiring big data has two main sub components to it, the first being sensing the existence of the data’ itself and the second, the stage of collecting and storing this data. Both of these subcomponents are incredibly diverse fields, with lots of rapid change occurring in the technology utilised to carry out these tasks. The section will provide a brief overview of the subcomponents and then discuss the technology used to fulfil the tasks.</p>
<h2 style="text-align: justify;">Data Sensing</h2>
<p style="text-align: justify;">Data does not exist in a vacuum and is always created as a part of a larger process, especially in the aspect of modern technology. Therefore, the source of the data itself plays a vital role in determining how it can be captured and analysed in the larger scheme of things. Entities constantly emit information into the environment that can be utilised for the purposes of big data, leading to two main kinds of data: data that is “born digital” or “born analogue.”<a name="_ftnref4" href="#_ftn4"><sup><sup>[4]</sup></sup></a></p>
<h3 style="text-align: justify;">Born Digital Data</h3>
<p style="text-align: justify;">Information that is “born digital,” is created, by a user or by a digital system, specifically for use by a computer or data‐processing system. This is a vast range of information and newer fields are being added to this category on a daily basis. It includes, as a short, indicative list: email and text messaging, any form of digital input, including keyboards, mouse interactions and touch screens, GPS location data, data from daily home appliances (Internet of Things), etc. All of this data can be tracked and tagged to users as well as be aggregated to form a larger picture, massively increasing the scope of what may constitute the ‘data’ in big data.</p>
<p style="text-align: justify;">Some indicative uses of how such born digital data is catalogued by technological solutions on the user side, prior to being sent for collection/storage are:</p>
<p style="text-align: justify;">a.) Cookies - There are small, often just text, files that are left on user devices by websites in order to that visit, task or action (for example, logging into an email account) with a subsequent event.<a name="_ftnref5" href="#_ftn5"><sup><sup>[5]</sup></sup></a> (for example, revisiting the website)</p>
<p style="text-align: justify;">b.) Website Analytics<a name="_ftnref6" href="#_ftn6"><sup><sup>[6]</sup></sup></a> - Various services, such as Google Analytics, Piwik, etc., can use JavaScript and other web development languages to record a very detailed, intimate track of a user's actions on a website, including how long a user hovers above a link, the time spent on the website/application and in some cases, even the time spent specific aspects of the page.</p>
<p style="text-align: justify;">c.) GPS<a name="_ftnref7" href="#_ftn7"><sup><sup>[7]</sup></sup></a> - With the almost pervasive usage of smartphones with basic location capabilities, GPS sensors on these devices are used to provide regular, minute driven updates to applications, operating systems and even third parties about the user's location. Modern variations such as A-GPS can be used to provide basic positioning information even without satellite coverage, vastly expanding the indoor capabilities of location collection.</p>
<p style="text-align: justify;">All of these instances of sensing born digital data are common terms, used in daily parlance by billions of people from all over the world, which is a symbolic of just how deeply they have pervaded into our daily lifestyle. Apart from privacy & security concerns this in turn also leads to an exponential increase in the data available to collect for any interested party.</p>
<h3 style="text-align: justify;">Sensor Data</h3>
<p style="text-align: justify;">Information is said to be “analogue” when it contains characteristics of the physical world, such as images, video, heartbeats, etc. Such information becomes electronic when processed by a “sensor,” a device that can record physical phenomena and convert it into digital information. Some examples to better illustrate information that is born analogue but collected via digital means are:</p>
<p style="text-align: justify;">a.) Voice and/or video content on devices - Apart from phone calls and other forms communication, video and voice based interactions have started to regularly be captured to provide enhanced services. These include Google Now<a name="_ftnref8" href="#_ftn8"><sup><sup>[8]</sup></sup></a>, Cortana<a name="_ftnref9" href="#_ftn9"><sup><sup>[9]</sup></sup></a> and other digital assistants as well as voice guided navigation systems in cars, etc.</p>
<p style="text-align: justify;">b.) Personal health data such as heartbeats, blood pressure, respiration, velocity, etc. - This personal, potentially very powerful information is collected by dedicated sensors on devices such as Fitbit<a name="_ftnref10" href="#_ftn10"><sup><sup>[10]</sup></sup></a>, Mi Band<a name="_ftnref11" href="#_ftn11"><sup><sup>[11]</sup></sup></a>, etc. as well as by increasingly sophisticated smartphone applications such as Google Fit that can do so without any special device.</p>
<p style="text-align: justify;">c.) Camera on Home Appliances - Cameras and sensors on devices such as video game consoles (Kinect<a name="_ftnref12" href="#_ftn12"><sup><sup>[12]</sup></sup></a> being a relevant example) can record detailed human interactions, which can be mined for vast amounts of information apart from carrying out the basic interactions with the devices itself.</p>
<p style="text-align: justify;">While not as vast a category as born digital data, the increasingly lower costs of technology and ubiquitous usage of digital, networked devices is leading to information that was traditionally analogue in nature to be captured for use at a rapidly increasing rate.</p>
<h2 style="text-align: justify;">Data Collection & Storage</h2>
<p style="text-align: justify;">Traditional data was normally processed using the Extract, Transform, Load (ETL) methodology, which was used to collect the data from outside sources, modify the data to fit needs, and then upload the data into the data storage system for future use.<a name="_ftnref13" href="#_ftn13"><sup><sup>[13]</sup></sup></a> Technology such as spreadsheets, RDBMS databases, Structured Query Languages (SQL), etc. were all initially used to carry out these tasks, more often than not manually. <a name="_ftnref14" href="#_ftn14"><sup><sup>[14]</sup></sup></a></p>
<p style="text-align: justify;">However, for big data, the methodology traditionally followed is both inefficient and insufficient to meet the demands of modern use. Therefore, the Magnetic, Agile, Deep (MAD) process is used to collect and store data<a name="_ftnref15" href="#_ftn15"><sup><sup>[15]</sup></sup></a><a name="_ftnref16" href="#_ftn16"><sup><sup>[16]</sup></sup></a>. The needs and benefits of such a system are: attracting all the data sources regardless of their quality (magnetic), logical and physical contents of storage systems adapting to the rapid data evolution in big data (agile) and complex algorithmic statistical analysis required of big data on a very short notice<a name="_ftnref17" href="#_ftn17"><sup><sup>[17]</sup></sup></a>. (deep)</p>
<p style="text-align: justify;">The technology used to perform data storage using the MAD process requires vast amount of processing power, which is very difficult to create in a single, physical space/unit for nonstate or research entities, who cannot afford supercomputers. Therefore, most solutions used in big data rely on two major components to store data: distributed systems and Massive Parallel Processing<a name="_ftnref18" href="#_ftn18"><sup><sup>[18]</sup></sup></a> (MPP) that run on non-relational (in-memory) database systems. Database performance and reliability is traditionally gauged using pure performance metrics (FLOPS per second, etc.) as well as the Atomicity, consistency, isolation, durability (ACID) criteria.<a name="_ftnref19" href="#_ftn19"><sup><sup>[19]</sup></sup></a> The most commonly used database systems for big data applications are given below. The specific operational qualities and performance of each of these databases is beyond the scope of this review but the common criteria that makes them well suited for big data storage have been delineated below.</p>
<h3 style="text-align: justify;">Non-relational databases</h3>
<p style="text-align: justify;">Databases traditionally used to be structured entities that operated solely on the ability to correlate information stored in them using explicitly defined relationships. Even prior to the advent of big data, this outlook was turning out to be a limiting factor in how large amounts of stored information could be leveraged, this led to the evolution of non relational database systems. Before going into them in detail, a basic primer on their data transfer protocols will be helpful in understanding their operation.</p>
<p style="text-align: justify;">A protocol is a model that structures instructions in a particular manner so that it can be reproduced from one system to another<a name="_ftnref20" href="#_ftn20"><sup><sup>[20]</sup></sup></a><a name="_ftnref21" href="#_ftn21"><sup><sup>[21]</sup></sup></a>. The protocols which govern technology in the case of big data have gone through many stages of evolution, starting off with simple HTML based systems<a name="_ftnref22" href="#_ftn22"><sup><sup>[22]</sup></sup></a>, which then evolved to XML driven SOAP systems<a name="_ftnref23" href="#_ftn23"><sup><sup>[23]</sup></sup></a>, which led to JavaScript Object Notation, or JSON<a name="_ftnref24" href="#_ftn24"><sup><sup>[24]</sup></sup></a>, the currently used form for in most big database systems. JSON is an open format used to transfer data objects, using human-readable text and is the basis for most of the commonly used non-relational database management systems. Examples of Non-relational databases also known as NoSQL databases, include MongoDB<a name="_ftnref25" href="#_ftn25"><sup><sup>[25]</sup></sup></a>, Couchbase<a name="_ftnref26" href="#_ftn26"><sup><sup>[26]</sup></sup></a>, etc. They were developed for both managing as well as storing unstructured data. They aim for scaling, flexibility, and simplified development. Such databases rather focus on the high-performance scalable data storage, and allow tasks to be written in the application layer instead of databases specific languages, allowing for greater interoperability.<a name="_ftnref27" href="#_ftn27"><sup><sup>[27]</sup></sup></a></p>
<h3 style="text-align: justify;">In-Memory Databases</h3>
<p style="text-align: justify;">In order to overcome performance limitation of traditional database systems, some modern databases now use in-memory databases. These systems manage the data in the RAM memory of the server, thus eliminating storage disk input/output. This allows for almost realtime responses from the database, in comparisons to minutes or hours required on traditional database systems. This improvement in the performance is so massive that, entirely new applications are being developed for using IMDB systems.<a name="_ftnref28" href="#_ftn28"><sup><sup>[28]</sup></sup></a> These IMDB systems are also being used for advanced analytics on big data, especially to increase the access speed to data and increase the scoring rate of analytic models for analysis.<a name="_ftnref29" href="#_ftn29"><sup><sup>[29]</sup></sup></a> Examples of IMDB include VoltDB<a name="_ftnref30" href="#_ftn30"><sup><sup>[30]</sup></sup></a>, NuoDB<a name="_ftnref31" href="#_ftn31"><sup><sup>[31]</sup></sup></a>, SolidDB<a name="_ftnref32" href="#_ftn32"><sup><sup>[32]</sup></sup></a> and Apache Spark<a name="_ftnref33" href="#_ftn33"><sup><sup>[33]</sup></sup></a>.</p>
<h2 style="text-align: justify;">Hybrid Systems</h2>
<p style="text-align: justify;">These are the two major systems used to store data prior to it being processed or analysed in a big data application. However, the divide between data storage and data management is a slim one and most database systems also contain various unique attributes that cater them to specific kinds of analysis. (as can be seen from the IMDB example above) One example of a very commonly used Hybrid system that deals with storage as well as awareness of the data is Apache Hadoop<sup>33</sup>, which is detailed below.</p>
<h2 style="text-align: justify;">Apache Hadoop</h2>
<p style="text-align: justify;">Hadoop consists of two main components: the HDFS for the big data storage, and MapReduce for big data analytics, each of which will be detailed in their respective section.</p>
<ol style="text-align: justify;">
<li>The HDFS<a name="_ftnref34" href="#_ftn34"><sup><sup>[34]</sup></sup></a><a name="_ftnref35" href="#_ftn35"><sup><sup>[35]</sup></sup></a> storage function in Hadoop provides a reliable distributed file system, stored across multiple systems for processing & redundancy reasons. The file system is optimized for large files, as single files are split into blocks and spread across systems known as cluster nodes.<a name="_ftnref36" href="#_ftn36"><sup><sup>[36]</sup></sup></a> Additionally, the data is protected among the nodes by a replication mechanism, which ensures availability even if any node fails. Further, there are two types of nodes: Data Nodes and Name Nodes.<a name="_ftnref37" href="#_ftn37"><sup><sup>[37]</sup></sup></a> Data is stored in the form of file blocks across the multiple Data Nodes while the Name Node acts as an intermediary between the client and the Data Node, where it directs the requesting client to the particular Data Node which contains the requested data.</li></ol>
<p style="text-align: justify;">This operating structure for storing data also has various variations within Hadoop such as HBase for key/value pair type queries (a NoSQL based system), Hive for relational type queries, etc. Hadoop’s redundancy, speed, ability to run on commodity hardware, industry support and rapid pace of development have led to it being almost co-equivalently associated with big data.<a name="_ftnref38" href="#_ftn38"><sup><sup>[38]</sup></sup></a></p>
<h2 style="text-align: justify;">Data Awareness</h2>
<p style="text-align: justify;">Data Awareness, in the context of big data, is the task of creating a scheme of relationships within a set of data, to allow different users of the data to determine a fluid yet valid context and utilise it for their desired tasks.<a name="_ftnref39" href="#_ftn39"><sup><sup>[39]</sup></sup></a> It is a relatively new field, in which most of the work is currently being done on semantic structures to allow data to gain context in an interoperable format, in contrast to the current system where data is given context using unique, model specific constructs.<a name="_ftnref40" href="#_ftn40"><sup><sup>[40]</sup></sup></a> (such as XML Schemes, etc.)</p>
<p style="text-align: justify;">Some of the original work on this field was carried out in the form of utilising the Resource Description Framework (RDF), which was built primarily to allow describing of data in a portable manner, especially being agnostic towards platforms and systems for Semantic Web at the W3C. SPARQL is the language used to implement RDF based designs but both largely remain underutilised in both the public domain as well as big data. Authors such as Kurt</p>
<p style="text-align: justify;">Cagle<a name="_ftnref41" href="#_ftn41"><sup><sup>[41]</sup></sup></a> and Bob DuCharme<a name="_ftnref42" href="#_ftn42"><sup><sup>[42]</sup></sup></a> predict its explosion in the next couple of years. Companies have also started realising the value of interoperable context, with Oracle Spatial<a name="_ftnref43" href="#_ftn43"><sup><sup>[43]</sup></sup></a> and IBM’s DB2<a name="_ftnref44" href="#_ftn44"><sup><sup>[44]</sup></sup></a> already including RDF and SPARQL support in the past 3 years.</p>
<p style="text-align: justify;">While underutilised, the rapid developments taking place in the field will make the impact that data awareness may have on big data as big as Hadoop and maybe even SQL. Some aspects of it are already beginning to be used in Artificial Intelligence, Natural Language Processing, etc. with tremendous scope for development.<a name="_ftnref45" href="#_ftn45"><sup><sup>[45]</sup></sup></a></p>
<h2 style="text-align: justify;">Data Processing & Analytics</h2>
<p style="text-align: justify;">Data Processing largely has three primary goals: a. determines if the data collected is internally consistent; b. make the data meaningful to other systems or users using either metaphors or analogy they can understand; and (what many consider most importantly) provide predictions about future events and behaviours based upon past data and trends.<a name="_ftnref46" href="#_ftn46"><sup><sup>[46]</sup></sup></a></p>
<p style="text-align: justify;">Being a very vast field with rapidly changing technologies governing its operation, this section will largely concentrate on the most commonly used technologies in data analytics.</p>
<p style="text-align: justify;">Data analytics requires four primary conditions to be met in order to carry out effective processing: fast, data loading, fast query processing, efficient utilisation of storage and adaptivity to dynamic workload patterns. The analytical model most commonly associated with meeting this criteria and with big data in general is MapReduce, detailed below. There are other, more niche models and algorithms (such as Project Voldemort<a name="_ftnref47" href="#_ftn47"><sup><sup>[47]</sup></sup></a> used by LinkedIn), which are used in big data but they are beyond the scope of the review, and more information about them can be read at article linked in the previous citation. (Reference architecture and classification of technologies, products and services for big data system)</p>
<h2 style="text-align: justify;">MapReduce</h2>
<p style="text-align: justify;">MapReduce is a generic parallel programming concept, derived from the “Map” and “Reduce” of functional programming languages, which makes it particularly suited for big data operations. It is at the core of Hadoop<a name="_ftnref48" href="#_ftn48"><sup><sup>[48]</sup></sup></a>, and performs the data processing and analytics functions in other big data systems as well.<a name="_ftnref49" href="#_ftn49"><sup><sup>[49]</sup></sup></a> The fundamental premise of MapReduce is scaling out rather than scaling up, i.e., (adding more numerical resources, rather than increasing the power of a single system)<a name="_ftnref50" href="#_ftn50"><sup><sup>[50]</sup></sup></a></p>
<p style="text-align: justify;">MapReduce operates by breaking a task down into steps and executing the steps in parallel, across many systems. This comes with two advantages, a reduction in the time needed to finish the task and also a decrease in the amount of resources one has to expend to perform the task, in both power and energy. This model makes it ideally suited for the large data sets and quick response times required of big data operations generally.</p>
<p style="text-align: justify;">The first step of a MapReduce job is to correlate the input values to a set of keys/value pairs as output. The “Map” function then partitions the processing tasks into smaller tasks, and assigns them to the appropriate key/value pairs.<a name="_ftnref51" href="#_ftn51"><sup><sup>[51]</sup></sup></a> This allows unstructured data, such as plain text, to be mapped to a structured key/value pair. As an example, the key could be the punctuation in a sentence and the value of the pair could be the number of occurrences of the punctuation overall. This output of the Map function is then passed on “Reduce” function.<a name="_ftnref52" href="#_ftn52"><sup><sup>[52]</sup></sup></a> Reduce then collects and combines this output, using identical key/value pairs, to provide the final result of the task.<a name="_ftnref53" href="#_ftn53"><sup><sup>[53]</sup></sup></a> These steps are carried using the Job Tracker & Task Tracker in Hadoop but different systems have different methodologies to carry out similar tasks.</p>
<h2 style="text-align: justify;">Data Governance</h2>
<p style="text-align: justify;">Data Governance is the act of managing raw big data as well as the processed information that arises from big data in order to meet legal, regulatory and business imposed requirements. While there is no standardized format for data governance, there have been increasing call with various sectors (especially healthcare) to create such a format to ensure reliable, secure and consistent big data utilisation across the board. The following tactics and techniques have been utilised or suggested for data governance, with varying degrees of success:</p>
<ol style="text-align: justify;">
<li><strong>Zero-knowledge systems</strong>: This technological proposal maintains secrecy with respect to the low-level data while allowing encrypted data to be examined for certain higherlevel abstractions.<a name="_ftnref54" href="#_ftn54"><sup><sup>[54]</sup></sup></a> For the system to be zero-knowledge, the client’s system will have to encrypt the data and send it to the storage provider. Due to this, the provider stores the data in the encrypted format and cannot decipher the same unless he/she is in possession of the key which will decrypt the data into plaintext. This allows the individual to store his data with a storage provider while also maintaining anonymity of the details contained in such information. However, these are currently just beginning to be used in simple situations. As of now, they are not expandable to unstructured and complex cases and have to be developed marginally before they can be used for research and data mining purposes.</li>
<li><strong>Homomorphic encryption</strong>: Homomorphic encryption is a privacy preserving technique which performs searches and other computations over data that is encrypted while also protecting the individual’s privacy.<a name="_ftnref55" href="#_ftn55"><sup><sup>[55]</sup></sup></a> This technique has however been considered to be impractical and is deemed to be an unlikely policy alternative for near future purposes in the context of preserving privacy in the age of big data.<a name="_ftnref56" href="#_ftn56"><sup><sup>[56]</sup></sup></a></li>
<li><strong>Multi-party computation</strong>: In this technique, computation is done on encrypted distributed data stores.<a name="_ftnref57" href="#_ftn57"><sup><sup>[57]</sup></sup></a> This mechanism is closely related to homomorphic encryption where individual data is kept private using encryption algorithms called “collusion-robust” while the same is used to calculate statistics.<a name="_ftnref58" href="#_ftn58"><sup><sup>[58]</sup></sup></a> The parties involved are aware of some private data and each of them use a protocol which produces results based on the information they are aware of and the information they are not aware of, without revealing the data they are not already aware of.<a name="_ftnref59" href="#_ftn59"><sup><sup>[59]</sup></sup></a> Multi-party computations thus help in generating useful data for statistical and research purposes without compromising the privacy of the individuals.</li></ol>
<ol style="text-align: justify;">
<li><strong>Differential Privacy</strong>: Although this technological development is related to encryption, it follows a different technique. Differential privacy aims at maximizing the precision of computations and database queries while reducing the identifiability of the data owners who have records in the database, usually through obfuscation of query results.<a name="_ftnref60" href="#_ftn60"><sup><sup>[60]</sup></sup></a> This is widely applied today in the existence of big data in order to ensure preservation of privacy while trying to reap the benefits of large scale data collection.<a name="_ftnref61" href="#_ftn61"><sup><sup>[61]</sup></sup></a></li>
<li><strong>Searchable encryption</strong>: Through this mechanism, the data subject can make certain data searchable while minimizing exposure and maximizing privacy.<a name="_ftnref62" href="#_ftn62"><sup><sup>[62]</sup></sup></a> The data owner can make his information available through search engines by providing the data in an encrypted format but by adding tags consisting of certain keywords which can be deciphered by the search engine. This encrypted data shows up in the search results when searched with these particular keywords but can only be read when the person is in possession of the key which is required for decrypting the information.</li></ol>
<p style="text-align: justify;">This technique of encryption provides maximum security to the individual’s data and preserves privacy to the greatest possible extent.</p>
<ol style="text-align: justify;">
<li><strong>K-anonymity</strong>: The property of k-anonymity is being applied in the present day in order to preserve privacy and avoid re-identification.<a name="_ftnref63" href="#_ftn63"><sup><sup>[63]</sup></sup></a> A certain data set is said to possess the property of k-anonymity if individual specific data can be released and used for various purposes without re-identification. The analysis of the data should be carried out without attributing the data to the individual to whom it belongs and should give scientific guarantees for the same.</li>
<li><strong>Identity Management Systems</strong>: These systems enable the individuals to establish and safeguard their identities, explain those identities with the help of attributes, follow the activity of their identities and also delete their identities if they wish to.<a name="_ftnref64" href="#_ftn64"><sup><sup>[64]</sup></sup></a> It uses cryptographic schemes and protocols to make anonymous or pseudonymous the identities and credentials of the individuals before analysing the data.</li>
<li><strong>Privacy Preserving Data Publishing</strong>: This is a method in which the analysts are provided with the individual’s personal information with the ability to decipher particular information from the database while preventing the inference of certain other information which might lead to a breach of privacy.<a name="_ftnref65" href="#_ftn65"><sup><sup>[65]</sup></sup></a> Data which is essential for the analysis will be provided for processing while sensitive data will not be disclosed. This tool primarily focuses on microdata.</li>
<li><strong>Privacy Preserving Data Mining</strong>: This mechanism uses perturbation methods and randomization along with cryptography in order to permit data mining on a filtered version of the data which does not contain any form of sensitive information. PPDM focuses on data mining results unlike PPDP.<a name="_ftnref66" href="#_ftn66"><sup><sup>[66]</sup></sup></a> </li></ol>
<h2 style="text-align: justify;">Conclusion</h2>
<p style="text-align: justify;">Studying the technology surrounding big data has led to two major observations: the rapid pace of development in the industry and the stark lack of industry standards or government regulations directed towards big data technologies. These observations have been the primary motivating factor for framing further research in the field. Understanding how to deal with big data technologically, rather than just the potential regulation of possible harms after the technological processes have been performed might be critical for the human rights dialogue as these processes become even more extensive, opaque and technologically complicated.</p>
<hr style="text-align: justify;" />
<p style="text-align: justify;"><a name="_ftn1" href="#_ftnref1">[1]</a> EMC: Data Science and Big Data Analytics. In: EMC Education Services, pp. 1–508 (2012)</p>
<p style="text-align: justify;"><a name="_ftn2" href="#_ftnref2">[2]</a> Bakshi, K.: Considerations for Big Data: Architecture and Approaches. In: Proceedings of the IEEE Aerospace Conference, pp. 1–7 (2012)</p>
<p style="text-align: justify;"><a name="_ftn3" href="#_ftnref3">[3]</a> Adams, M.N.: Perspectives on Data Mining. International Journal of Market Research 52(1), 11–19 (2010) <sup>4</sup> Elgendy, N.: Big Data Analytics in Support of the Decision Making Process. MSc Thesis, German University in Cairo, p. 164 (2013)</p>
<p style="text-align: justify;"><a name="_ftn4" href="#_ftnref4">[4]</a> Big Data and Privacy: A Technological Perspective - President’s Council of Advisors on Science and</p>
<p style="text-align: justify;">Technology (May 2014)</p>
<p style="text-align: justify;"><a name="_ftn5" href="#_ftnref5">[5]</a> Chen, Hsinchun, Roger HL Chiang, and Veda C. Storey. "Business Intelligence and Analytics: From Big Data to Big Impact." MIS quarterly 36.4 (2012): 1165-1188.</p>
<p style="text-align: justify;"><a name="_ftn6" href="#_ftnref6">[6]</a> Chandramouli, Badrish, Jonathan Goldstein, and Songyun Duan. "Temporal analytics on big data for web advertising." 2012 IEEE 28th international conference on data engineering. IEEE, 2012.</p>
<p style="text-align: justify;"><a name="_ftn7" href="#_ftnref7">[7]</a> Laurila, Juha K., et al. "The mobile data challenge: Big data for mobile computing research." Pervasive Computing. No. EPFL-CONF-192489. 2012.</p>
<p style="text-align: justify;"><a name="_ftn8" href="#_ftnref8">[8]</a> Lazer, David, et al. "The parable of Google flu: traps in big data analysis." <em>Science</em> 343.6176 (2014): 12031205.</p>
<p style="text-align: justify;"><a name="_ftn9" href="#_ftnref9">[9]</a> <em>ibid</em></p>
<p style="text-align: justify;"><a name="_ftn10" href="#_ftnref10">[10]</a> Banaee, Hadi, Mobyen Uddin Ahmed, and Amy Loutfi. "Data mining for wearable sensors in health monitoring systems: a review of recent trends and challenges." <em>Sensors</em> 13.12 (2013): 17472-17500.</p>
<p style="text-align: justify;"><a name="_ftn11" href="#_ftnref11">[11]</a> <em>ibid</em></p>
<p style="text-align: justify;"><a name="_ftn12" href="#_ftnref12">[12]</a> Chung, Eric S., John D. Davis, and Jaewon Lee. "Linqits: Big data on little clients." <em>ACM SIGARCH Computer Architecture News</em>. Vol. 41. No. 3. ACM, 2013.</p>
<p style="text-align: justify;"><a name="_ftn13" href="#_ftnref13">[13]</a> Kornelson, Kevin Paul, et al. "Method and system for developing extract transform load systems for data warehouses." U.S. Patent No. 7,139,779. 21 Nov. 2006.</p>
<p style="text-align: justify;"><a name="_ftn14" href="#_ftnref14">[14]</a> Henry, Scott, et al. "Engineering trade study: extract, transform, load tools for data migration." <em>2005 IEEE Design Symposium, Systems and Information Engineering</em>. IEEE, 2005.</p>
<p style="text-align: justify;"><a name="_ftn15" href="#_ftnref15">[15]</a> Cohen, Jeffrey, et al. "MAD skills: new analysis practices for big data." <em>Proceedings of the VLDB Endowment</em></p>
<p style="text-align: justify;"><a name="_ftn16" href="#_ftnref16">[16]</a> .2 (2009): 1481-1492.</p>
<p style="text-align: justify;"><a name="_ftn17" href="#_ftnref17">[17]</a> Elgendy, Nada, and Ahmed Elragal. "Big data analytics: a literature review paper." <em>Industrial Conference on Data Mining</em>. Springer International Publishing, 2014.</p>
<p style="text-align: justify;"><a name="_ftn18" href="#_ftnref18">[18]</a> Wu, Xindong, et al. "Data mining with big data." <em>IEEE transactions on knowledge and data engineering</em> 26.1 (2014): 97-107.</p>
<p style="text-align: justify;"><a name="_ftn19" href="#_ftnref19">[19]</a> Supra Note 17</p>
<p style="text-align: justify;"><a name="_ftn20" href="#_ftnref20">[20]</a> Hu, Han, et al. "Toward scalable systems for big data analytics: A technology tutorial." <em>IEEE Access</em> 2 (2014):</p>
<p style="text-align: justify;"><a name="_ftn21" href="#_ftnref21">[21]</a> -687.</p>
<p style="text-align: justify;"><a name="_ftn22" href="#_ftnref22">[22]</a> Kurt Cagle, Understanding the Big Data Lifecycle - LinkedIn Pulse (2015)</p>
<p style="text-align: justify;"><a name="_ftn23" href="#_ftnref23">[23]</a> Coyle, Frank P. <em>XML, Web services, and the data revolution</em>. Addison-Wesley Longman Publishing Co., Inc., 2002.</p>
<p style="text-align: justify;"><a name="_ftn24" href="#_ftnref24">[24]</a> Pautasso, Cesare, Olaf Zimmermann, and Frank Leymann. "Restful web services vs. big'web services: making the right architectural decision." <em>Proceedings of the 17th international conference on World Wide Web</em>. ACM, 2008.</p>
<p style="text-align: justify;"><a name="_ftn25" href="#_ftnref25">[25]</a> Banker, Kyle. <em>MongoDB in action</em>. Manning Publications Co., 2011</p>
<p style="text-align: justify;"><a name="_ftn26" href="#_ftnref26">[26]</a> McCreary, Dan, and Ann Kelly. "Making sense of NoSQL." <em>Shelter Island: Manning</em> (2014): 19-20.</p>
<p style="text-align: justify;"><a name="_ftn27" href="#_ftnref27">[27]</a> <em>ibid</em></p>
<p style="text-align: justify;"><a name="_ftn28" href="#_ftnref28">[28]</a> Zhang, Hao, et al. "In-memory big data management and processing: A survey." <em>IEEE Transactions on Knowledge and Data Engineering</em> 27.7 (2015): 1920-1948.</p>
<p style="text-align: justify;"><a name="_ftn29" href="#_ftnref29">[29]</a> <em>ibid</em></p>
<p style="text-align: justify;"><a name="_ftn30" href="#_ftnref30">[30]</a> <em>ibid</em></p>
<p style="text-align: justify;"><a name="_ftn31" href="#_ftnref31">[31]</a> Supra Note 20</p>
<p style="text-align: justify;"><a name="_ftn32" href="#_ftnref32">[32]</a> Ballard, Chuck, et al. <em>IBM solidDB: Delivering Data with Extreme Speed</em>. IBM Redbooks, 2011.</p>
<p style="text-align: justify;"><a name="_ftn33" href="#_ftnref33">[33]</a> Shanahan, James G., and Laing Dai. "Large scale distributed data science using apache spark." <em>Proceedings of the 21th ACM SIGKDD International Conference on Knowledge Discovery and Data Mining</em>. ACM, 2015. <sup>33</sup> Shvachko, Konstantin, et al. "The hadoop distributed file system." <em>2010 IEEE 26th symposium on mass storage systems and technologies (MSST)</em>. IEEE, 2010.</p>
<p style="text-align: justify;"><a name="_ftn34" href="#_ftnref34">[34]</a> Borthakur, Dhruba. "The hadoop distributed file system: Architecture and design." <em>Hadoop Project Website</em></p>
<p style="text-align: justify;"><a name="_ftn35" href="#_ftnref35">[35]</a> .2007 (2007): 21.</p>
<p style="text-align: justify;"><a name="_ftn36" href="#_ftnref36">[36]</a> <em>ibid</em></p>
<p style="text-align: justify;"><a name="_ftn37" href="#_ftnref37">[37]</a> <em>ibid</em></p>
<p style="text-align: justify;"><a name="_ftn38" href="#_ftnref38">[38]</a> Zikopoulos, Paul, and Chris Eaton. <em>Understanding big data: Analytics for enterprise class hadoop and streaming data</em>. McGraw-Hill Osborne Media, 2011.</p>
<p style="text-align: justify;"><a name="_ftn39" href="#_ftnref39">[39]</a> Bizer, Christian, et al. "The meaningful use of big data: four perspectives--four challenges." <em>ACM SIGMOD Record</em> 40.4 (2012): 56-60.</p>
<p style="text-align: justify;"><a name="_ftn40" href="#_ftnref40">[40]</a> Kaisler, Stephen, et al. "Big data: issues and challenges moving forward." <em>System Sciences (HICSS), 2013 46th Hawaii International Conference on</em>. IEEE, 2013.</p>
<p style="text-align: justify;"><a name="_ftn41" href="#_ftnref41">[41]</a> Supra Note 21</p>
<p style="text-align: justify;"><a name="_ftn42" href="#_ftnref42">[42]</a> DuCharme, Bob. "What Do RDF and SPARQL bring to Big Data Projects?." <em>Big Data</em> 1.1 (2013): 38-41.</p>
<p style="text-align: justify;"><a name="_ftn43" href="#_ftnref43">[43]</a> Zhong, Yunqin, et al. "Towards parallel spatial query processing for big spatial data." <em>Parallel and </em></p>
<p style="text-align: justify;"><em>Distributed Processing Symposium Workshops & PhD Forum (IPDPSW), 2012 IEEE 26th International</em>. IEEE, 2012.</p>
<p style="text-align: justify;"><a name="_ftn44" href="#_ftnref44">[44]</a> Ma, Li, et al. "Effective and efficient semantic web data management over DB2." <em>Proceedings of the 2008 ACM SIGMOD international conference on Management of data</em>. ACM, 2008.</p>
<p style="text-align: justify;"><a name="_ftn45" href="#_ftnref45">[45]</a> Lohr, Steve. "The age of big data." <em>New York Times</em> 11 (2012).</p>
<p style="text-align: justify;"><a name="_ftn46" href="#_ftnref46">[46]</a> Pääkkönen, Pekka, and Daniel Pakkala. "Reference architecture and classification of technologies, products and services for big data systems." <em>Big Data Research</em> 2.4 (2015): 166-186.</p>
<p style="text-align: justify;"><a name="_ftn47" href="#_ftnref47">[47]</a> Sumbaly, Roshan, et al. "Serving large-scale batch computed data with project voldemort." <em>Proceedings of the 10th USENIX conference on File and Storage Technologies</em>. USENIX Association, 2012.</p>
<p style="text-align: justify;"><a name="_ftn48" href="#_ftnref48">[48]</a> Bar-Sinai, Michael. "Big Data Technology Literature Review." <em>arXiv preprint arXiv:1506.08978</em> (2015).</p>
<p style="text-align: justify;"><a name="_ftn49" href="#_ftnref49">[49]</a> ibid</p>
<p style="text-align: justify;"><a name="_ftn50" href="#_ftnref50">[50]</a> Condie, Tyson, et al. "MapReduce Online." <em>Nsdi</em>. Vol. 10. No. 4. 2010.</p>
<p style="text-align: justify;"><a name="_ftn51" href="#_ftnref51">[51]</a> Supra Note 47</p>
<p style="text-align: justify;"><a name="_ftn52" href="#_ftnref52">[52]</a> Dean, Jeffrey, and Sanjay Ghemawat. "MapReduce: a flexible data processing tool." <em>Communications of the ACM</em> 53.1 (2010): 72-77.</p>
<p style="text-align: justify;"><a name="_ftn53" href="#_ftnref53">[53]</a> ibid</p>
<p style="text-align: justify;"><a name="_ftn54" href="#_ftnref54">[54]</a> Big Data and Privacy: A Technological Perspective, White House,</p>
<p style="text-align: justify;">https://www.whitehouse.gov/sites/default/files/microsites/ostp/PCAST/pcast_big_data_and_privacy__may_2014</p>
<p style="text-align: justify;"><a name="_ftn55" href="#_ftnref55">[55]</a> Tene, Omer, and Jules Polonetsky. "Big data for all: Privacy and user control in the age of analytics." <em>Nw. J. Tech. & Intell. Prop.</em> 11 (2012): xxvii.</p>
<p style="text-align: justify;"><a name="_ftn56" href="#_ftnref56">[56]</a> Big Data and Privacy: A Technological Perspective, White House,</p>
<p style="text-align: justify;">https://www.whitehouse.gov/sites/default/files/microsites/ostp/PCAST/pcast_big_data_and_privacy__may_2014</p>
<p style="text-align: justify;"><a name="_ftn57" href="#_ftnref57">[57]</a> Privacy by design in big data, ENISA</p>
<p style="text-align: justify;"><a name="_ftn58" href="#_ftnref58">[58]</a> Big Data and Privacy: A Technological Perspective, White House,</p>
<p style="text-align: justify;">https://www.whitehouse.gov/sites/default/files/microsites/ostp/PCAST/pcast_big_data_and_privacy__may_2014</p>
<p style="text-align: justify;"><a name="_ftn59" href="#_ftnref59">[59]</a> Id</p>
<p style="text-align: justify;"><a name="_ftn60" href="#_ftnref60">[60]</a> Id</p>
<p style="text-align: justify;"><a name="_ftn61" href="#_ftnref61">[61]</a> Tene, Omer, and Jules Polonetsky. "Privacy in the age of big data: a time for big decisions." <em>Stanford Law Review Online</em> 64 (2012): 63.</p>
<p style="text-align: justify;"><a name="_ftn62" href="#_ftnref62">[62]</a> Lane, Julia, et al., eds. <em>Privacy, big data, and the public good: Frameworks for engagement</em>. Cambridge University Press, 2014.</p>
<p style="text-align: justify;"><a name="_ftn63" href="#_ftnref63">[63]</a> Crawford, Kate, and Jason Schultz. "Big data and due process: Toward a framework to redress predictive privacy harms." <em>BCL Rev.</em> 55 (2014): 93.</p>
<p style="text-align: justify;"><a name="_ftn64" href="#_ftnref64">[64]</a> http://homes.esat.kuleuven.be/~sguerses/papers/DanezisGuersesSurveillancePets2010.pdf</p>
<p style="text-align: justify;"><a name="_ftn65" href="#_ftnref65">[65]</a> Seda Gurses and George Danezis, A critical review of 10 years of privacy technology, August 12th 2010, http://homes.esat.kuleuven.be/~sguerses/papers/DanezisGuersesSurveillancePets2010.pdf</p>
<p style="text-align: justify;"><a name="_ftn66" href="#_ftnref66">[66]</a> Id</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/technology-behind-big-data'>http://editors.cis-india.org/internet-governance/blog/technology-behind-big-data</a>
</p>
No publisherGeethanjali Jujjavarapu and Udbhav TiwariBig DataPrivacyInternet GovernanceFeaturedHomepage2016-12-04T09:53:43ZBlog EntryIndian Newspapers' Digital Transition
http://editors.cis-india.org/raw/indian-newspapers-digital-transition
<b>This report examines the digital transition underway at three leading newspapers in India, the Dainik Jagran in Hindi, English-language Hindustan Times, and Malayala Manorama in Malayalam. Our focus is on how they are changing their newsroom organisation and journalistic work to expand their digital presence and adapt to a changing media environment. The report comes out of a collaboration between the CIS and the Reuters Institute for the Study of Journalism, University of Oxford, and was supported by the latter. The research was undertaken by Zeenab Aneez, with contributions from Rasmus Kleis Nielsen, Vibodh Parthasarathi, and Sumandro Chattapadhyay.</b>
<p> </p>
<h4>Download: <a href="http://reutersinstitute.politics.ox.ac.uk/sites/default/files/Indian%20Newspapers%27%20Digital%20Transition.pdf">PDF</a>.</h4>
<p>Cross-posted from the <a href="http://reutersinstitute.politics.ox.ac.uk/publication/indian-newspapers-digital-transition">Reuters Institute for the Study of Journalism</a> (December 08, 2016).</p>
<hr />
<h2>Executive Summary</h2>
<p>This report examines the digital transition underway at three leading newspapers in India, the <em>Dainik Jagran</em> in Hindi, English-language <em>Hindustan Times</em>, and <em>Malayala Manorama</em> in Malayalam. Our focus is on how they are changing their newsroom organisation and journalistic work to expand their digital presence and adapt to a changing media environment.</p>
<p>The background for the report is the rapid and continued growth in digital media use in India. Especially since 2010, internet use has grown at an explosive pace, driven by the spread of mobile web access, also outside large urban areas and the more affluent and highly educated English-language minority that have historically represented a large part of India’s internet users. Some analysts estimate more than 30% of Indians had some form of internet access by the end of 2015 (IAMAI-IMRB, 2015). With this growth has come a perceptible shift of audience attention and advertising investment away from legacy media like print and television and towards digital media. This shift has been accompanied by the launch of a number of new digital media start-ups in India and, especially, the growing role of large international technology companies investing in the Indian market.</p>
<p>These developments present Indian newspapers with new challenges and opportunities. Print circulation and advertising is still growing in India, but more slowly than in the past, and especially the English-language market
seems saturated and ripe for the shift towards digital media that has happened elsewhere. From 2014 to 2015, the Indian advertising market grew by 13%. Print grew 8%, but English-language newspaper advertising only half of that. Digital advertising, in contrast, grew by 38%, and is projected to continue to grow for years to come as digital media become more central to India’s overall media environment (KPMG-FICCI, 2016).</p>
<p>If they want to secure their long-term future and continued editorial and commercial success, Indian newspapers have to adapt to these changes. The three case studies in this report represent three different examples of how major newspapers are navigating this transition.</p>
<p>Based on over 30 interviews conducted with senior management, editors, and rank-and-file reporters from three major newspapers, as well as other senior journalists and researchers who have wider experience in the Indian
news industry, plus secondary sources including industry reports and academic research, we show the following.</p>
<ul><li>All three newspapers are proactively investing in digital media technology and expertise, and adapting their editorial priorities, parts of their daily workflow, distribution strategies, and business model to the
rise of digital media. Tools like Chartbeat are now commonplace; search engine optimisation, social media optimisation, and audience analytics are part of everyday work; and some are experimenting with new
formats (<em>Hindustan Times</em> was a launch partner for Facebook Instant Articles; <em>Manorama Online</em> has produced both Virtual Reality and 360 videos, an Apple watch app, and is on Amazon Echo).<br /><br /></li>
<li>Given that the print newspaper industry is still growing in India, especially in Indian-language markets, these newspapers are innovating from a position of relative strength in comparison to their North American and European counterparts. However, this is done with the awareness that that print is becoming a relatively less important part of the Indian media environment, and digital media more important. Short-term, reach and profits come from print, but longer term, all have to build a strong digital presence to succeed editorially and commercially.<br /><br /></li>
<li>All three newspapers aim to do this by building on the assets they have as legacy media organisations, and trying to leverage their brand reputation, audience reach, and editorial resources to maintain an edge over digital news start-ups and international news providers. Their legacy, however, offers not only assets, but also liabilities. As successful incumbents, all of them struggle with the inertia that comes from established organisational structures and professional cultures. To change their organisation and culture, and thus more effectively combine new technologies and skills with existing core competences, each newspaper is not only investing in digital media and personnel, but also trying to change at least parts of the existing newspaper to adapt to an increasingly digital media environment.<br /><br /></li>
<li>They do this in different ways. At <em>Dainik Jagran</em> and <em>Malayala Manorama</em>, the focus has been on building up separate digital operations at Jagran.com and Manorama Online, apart from the printed newspaper itself. At the <em>Hindustan Times</em>, in contrast, the aim has been to integrate print and digital in a joint operation working across platforms and channels. <em>Dainik Jagran</em> and <em>Malayala Manoroma</em> have thus focused mostly on building up new digital assets, whereas the <em>Hindustan Times</em> has been transforming existing assets to work across platforms. At <em>Dainik Jagran</em> and <em>Malayala Manorama</em>, much of the push for change has come from management, whereas there has been a stronger editorial involvement at the <em>Hindustan Times</em>, and a greater attempt to engage rank-and-file reporters through training sessions and other initiative designed to demonstrate not only the commercial importance, but also the editorial potential, of digital media.<br /><br /></li>
<li>All three newspapers have found that expanding their digital operations requires investment of money in new technologies and in staff with new skills. But it is also clear that this is not enough. Investment in technology has to be accompanied by a change in organisation and culture to effectively leverage existing assets in a digital media environment. In their attempts to do this, the most significant barriers have been a perceived cultural hierarchy, deeply ingrained especially in the newsroom, that print journalism is somehow inherently superior to
digital journalism, and a lack of effective synergy between editorial leaders and managers, often combined with a lack of technical know-how. Money can buy new tools and bring in new expertise, but it cannot on its own change culture, ensure synergy, or align the organisation with new priorities. This requires leadership and broad-based change. Long-term, senior editors, management, and rank-and-file reporters will have to work and change together to secure Indian newspapers’ role in an increasingly digital media environment.</li></ul>
<p>Digital media thus present Indian newspapers with challenges and opportunities similar to those newspapers have faced elsewhere. Only they face these from a position of greater strength, because of the continued growth in their print business, and with the benefit of having seen how things have developed in more technologically developed markets. We hope this report will help them navigate the digital transition ahead.</p>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/raw/indian-newspapers-digital-transition'>http://editors.cis-india.org/raw/indian-newspapers-digital-transition</a>
</p>
No publisherzeenabDigital NewsRAW PublicationsResearchers at WorkResearchDigital MediaFeaturedPublicationsHomepage2016-12-09T07:12:53ZBlog EntryFinTech in India: A Study of Privacy and Security Commitments
http://editors.cis-india.org/internet-governance/blog/aayush-rathi-and-shweta-mohandas-april-30-2019-fintech-in-india-a-study-of-privacy-and-security-commitments
<b>The unprecedented growth of the fintech space in India has concomitantly come with regulatory challenges around inter alia privacy and security concerns. This report studies the privacy policies of 48 fintech companies operating in India to better understand some of these concerns. </b>
<p> </p>
<h4>Access the full report: <a class="external-link" href="http://cis-india.org/internet-governance/files/Hewlett%20A%20study%20of%20FinTech%20companies%20and%20their%20privacy%20policies.pdf">Download</a> (PDF)</h4>
<p>The report by Aayush Rathi and Shweta Mohandas was edited by Elonnai Hickok. Privacy policy testing was done by Anupriya Nair and visualisations were done by Saumyaa Naidu. The project is supported by the William and Flora Hewlett Foundation.</p>
<hr />
<p>In India, the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 (subsequently referred to as SPD/I Rules) framed under the Information Technology Act, 2000 make privacy policies a ubiquitous feature of websites and mobile applications of firms operating in India. Privacy policies are drafted in order to allow consumers to make an informed choice about the privacy commitments being made vis-à-vis their information, and is often the sole document that lays down a companies’ privacy and security practices.In India, the Information Technology (Reasonable Security Practices andProcedures and Sensitive Personal Data or Information) Rules, 2011 (subsequently referred to as SPD/I Rules) framed under the Information Technology Act, 2000 make privacy policies a ubiquitous feature of websites and mobile applications of firms operating in India. Privacy policies are drafted in order to allow consumers to make an informed choice about the privacy commitments being made vis-à-vis their information, and is often the sole document that lays down a companies’ privacy and security practices.</p>
<p>The objective of this study is to understand privacy commitments undertaken by fintech companies operating in India as documented in their public facing privacy policies. This exercise will be useful to understand what standards of privacy and security protection fintech companies are committing to via their organisational privacy policies. The research will do so by aiming to understand the alignment of the privacy policies with the requirements mandated under the SPD/I Rules. Contingent on the learnings from this exercise, trends observed in fintech companies’ privacy and security commitments will be culled out.</p>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/aayush-rathi-and-shweta-mohandas-april-30-2019-fintech-in-india-a-study-of-privacy-and-security-commitments'>http://editors.cis-india.org/internet-governance/blog/aayush-rathi-and-shweta-mohandas-april-30-2019-fintech-in-india-a-study-of-privacy-and-security-commitments</a>
</p>
No publisherAayush Rathi and Shweta MohandasFeaturedHomepageInternet GovernancePrivacy2019-05-02T11:20:30ZBlog EntryOpen Data and Land Ownership
http://editors.cis-india.org/openness/open-data-and-land-ownership
<b>In this chapter of the recently published volume on State of Open Data, Tim Davies and Sumandro Chattapadhyay discuss how the lessons from the land ownership field highlight the political nature of data, and illustrate the importance of politically aware interventions when creating open data standards, infrastructure, and ecosystems. State of Open Data, edited by Tim Davies, Stephen B. Walker, Mor Rubinstein, and Fernando Perini, is published by African Minds and International Development Research Centre, Canada.</b>
<p> </p>
<h4>State of Open Data: <a href="https://www.stateofopendata.od4d.net/" target="_blank">Website</a> and <a href="http://www.africanminds.co.za/dd-product/state-of-open-data/" target="_blank">Book</a> (Open Access)</h4>
<h4>Chapter on Open Data and Land Ownership: <a href="https://zenodo.org/record/2677839" target="_blank">Zenodo</a> (PDF)</h4>
<hr />
<h2>Key Points</h2>
<h4>- Global availability of land ownership and land deals data is patchy, but, when available, it has been used by individual citizens, entrepreneurs, civil society, and journalists.</h4>
<h4>- Over the last decade, a number of responsible data lessons have been learned. These lessons can provide guidance on how to balance transparency and privacy and on how to draw research conclusions from partial data.</h4>
<h4>- In spite of large donor investments in land registration systems, few resources are currently made available to enable open data related to these projects. There are untapped opportunities as a result.</h4>
<h4>- Lessons from the land ownership field highlight the political nature of data, and illustrate the importance of politically aware interventions when creating open data standards, infrastructure, and ecosystems.</h4>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/openness/open-data-and-land-ownership'>http://editors.cis-india.org/openness/open-data-and-land-ownership</a>
</p>
No publishersumandroOpen DataFeaturedOpenness2019-05-22T11:32:18ZBlog EntryVote for the Everyday Digital Native Video Contest!
http://editors.cis-india.org/digital-natives/vote-for-digital-natives
<b>The Centre for Internet & Society and Hivos are super excited to present the final videos in the Everyday Digital Native Video Contest. We invite readers to vote for the TOP 5 Videos. The finalists will each win EUR500! Voting closes March 31, 2012</b>
<h2>Who’s the Everyday Digital Native? This global video contest has the answer</h2>
<p><em>They effect social change through social media, place their
communities on the global map, and share a spiritual connection with the
digital world - Meet the Everyday Digital Native</em></p>
<p>The Everyday Digital Native video contest has got its pulse on what
makes youths from diverse socio-cultural backgrounds connect with one
another in the global community – it’s an affinity for digital
technologies and Web 2.0-mediated platforms coupled with a drive to
spearhead social change. The contest invited people from around the
world to make a video that would answer the question, ‘Who is the
Everyday Digital Native?’. Following a jury-based selection process, the
final videos are now online and open for public voting.</p>
<p>Run by the Bangalore-based Centre for Internet & Society (CIS)
with the support of Dutch NGO HIVOS, the contest will see the top five
videos with the most votes declared winners on April 1, 2012. The 12
finalists in the video, who come from different parts of the globe, are
each vying for the top prize of USD 500 and a chance to have their
shorts screened in a film screening and panel discussion hosted by CIS. <br /><br />Referring
to the theme of the contest, Dr Nishant Shah, Director of Research and
Co-founder of the Centre, says that the contest aims at highlighting the
alternative users of digital technologies. These are people who are
often not accounted for either in mainstream discourses of changemakers
or in academic biopics on digital natives. “The 12 video proposals show
that the everyday digital native does not wake up in the morning and
think, ‘hmmm today I will change the world’. And yet, in their everyday
lives, when they see the possibility of producing a change in their
immediate environments, they turn to the digital to find networks that
can start a change”, says Shah. <br /><br />Apart from the top five public
selections, the jury members will be instrumental in picking their two
favorites among the finalists. Talking about the range of ideas that
participants sent in jury member Leon Tan, a media-art historian,
cultural theorist and psychoanalyst based in Gothenburg, Sweden, says,
“The contest is an exciting project as it has the potential to portray
the lives of digital natives from different corners of the world. The
generosity of the contestants in creating video proposals is commendable
as is the range of ideas suggested. The ideas address both the
opportunities and risks of what we might call digital life.” <br /><br />Adds
Shashwati Talukdar, a filmmaker and jury member from India, “It was
really interesting to see how different all the proposals were. Some of
them were taking the notion of digital native as a personal one and some
were very clearly political and sought an intervention in the real
world. Dutch digital media artist and jury member Jeroen van Loon refers
to a proposal from the USA where the participant wanted to explore the
possibility of unplugging from his digital life. “It’s very interesting
how digital natives question their own world. The proposals are good
examples of how technology and culture constantly change each other. We
can learn a lot from the global digital natives.” </p>
<p><a href="http://editors.cis-india.org/digital-natives/video-contest" class="external-link">Profiles of the finalists and their videos can be viewed here</a>.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/digital-natives/vote-for-digital-natives'>http://editors.cis-india.org/digital-natives/vote-for-digital-natives</a>
</p>
No publisherpraskrishnaVideoFeaturedResearchers at WorkDigital Natives2015-05-08T12:32:00ZBlog EntryHabeas Data in India
http://editors.cis-india.org/internet-governance/blog/habeas-data-in-india
<b>Habeas Data is a latin word which can be loosely translated to mean “have the data”. The right has been primarily conceptualized, designed, ratified, and implemented by various nation-states in the background of a shared common history of decades of torture, terror, and other repressive practices under military juntas and other fascist regimes.</b>
<hr />
<p style="text-align: justify; "><a class="external-link" href="http://cis-india.org/internet-governance/files/habeas-data-india.pdf/view"><b>Download the Paper</b></a> (PDF)</p>
<hr style="text-align: justify; " />
<h3 style="text-align: justify; ">Introduction</h3>
<p style="text-align: justify; ">The writ of habeas data was a distinct response to these recent histories which provided individuals with basic rights to access personal information collected by the state (and sometimes byprivate agencies of a public nature) and to challenge and correct such data, requiring the state to safeguard the privacy and accuracy of people's personal data.<a href="#fn1" name="fr1">[1] </a></p>
<p style="text-align: justify; ">The origins of Habeas Data are traced back, unsurprisingly, to the European legal regime since Europe is considered as the fountainhead of modern data protection laws. The inspiration for Habeas Data is often considered to be the Council of Europe's 108th Convention on Data Protection of 1981.<a href="#fn2" name="fr2">[2] </a>The purpose of the Convention was to secure the privacy of individuals regarding the automated processing of personal data. For this purpose, individuals were granted several rights including a right to access their personal data held in an automated database.<a href="#fn3" name="fr3">[3] </a></p>
<p style="text-align: justify; ">Another source or inspiration behind Habeas Data is considered to be the German legal system where a constitutional right to information self-determination was created by the German Constitutional Tribunal by interpretation of the existing rights of human dignity and personality. This is a right to know what type of data is stored on manual and automatic databases about an individual, and it implies that there must be transparency on the gathering and processing of such data.<a href="#fn4" name="fr4">[4] </a></p>
<p style="text-align: justify; ">Habeas Data is essentially a right or mechanism for an individual complaint presented to a constitutional court, to protect the image, privacy, honour, information self-determination and freedom of information of a person. <a href="#fn5" name="fr5">[5] </a></p>
<p style="text-align: justify; ">A Habeas Data complaint can be filed by any citizen against any register to find out what information is held about his or her person. That person can request the rectification, update or even the destruction of the personal data held, it does not matter most of the times if the register is private or public.<a href="#fn6" name="fr6">[6] </a></p>
<h3 style="text-align: justify; ">Habeas Data in different jurisdictions</h3>
<p style="text-align: justify; ">Habeas Data does not have any one specific definition and has different characteristics in different jurisdictions. Therefore, in order to better understand the right, it will be useful to describe the scope of Habeas Data as it has been incorporated in certain jurisdictions in order to better understand what the right entails:<a href="#fn7" name="fr7">[7] </a></p>
<p style="text-align: justify; "><b>Brazil</b></p>
<p style="text-align: justify; ">The Constitution of Brazil grants its citizens the right to get a habeas data “a. to assure knowledge of personal information about the petitioner contained in records or data banks of government agencies or entities of a public character; b. to correct data whenever the petitioner prefers not to do so through confidential judicial or administrative proceedings;<a href="#fn8" name="fr8">[8] </a></p>
<p style="text-align: justify; ">The place or tribunal where the Habeas Data action is to be filed changes depending on who is it presented against, which creates a complicated system of venues. Both the Brazilian constitution and the 1997 law stipulate that the court will be:</p>
<ul style="text-align: justify; ">
<li>The Superior Federal Tribunal for actions against the President, both chambers of Congress and itself;</li>
<li>The Superior Justice Tribunal for actions against Ministers or itself;</li>
<li>The regional federal judges for actions against federal authorities;</li>
<li>State tribunals according to each state law;</li>
<li>State judges for all other cases.<a href="#fn9" name="fr9">[9] </a></li>
</ul>
<p style="text-align: justify; "><b>Paraguay</b><br />The Constitution of Paraguay grants a similar right of habeas data in its constitution which states:</p>
<p style="text-align: justify; ">"All persons may access the information and the data that about themselves, or about their assets, [that] is [obren] in official or private registries of a public character, as well as to know the use made of the same and of their end. [All persons] may request before the competent magistrate the updating, the rectification or the destruction of these, if they were wrong or illegitimately affected their rights."<a href="#fn10" name="fr10">[10] </a></p>
<p style="text-align: justify; ">Compared to the right granted in Brazil, the text of the Paraguay Constitution specifically recognises that the citizen also has the right to know the use his/her data is being put to.</p>
<p style="text-align: justify; "><b>Argentina</b></p>
<p style="text-align: justify; ">Article 43 of the Constitution of Argentina grants the right of habeas data, though it has been included under the action of “amparo”,<a href="#fn11" name="fr11">[11] </a>the relevant portion of Article 43 states as follows:</p>
<p style="text-align: justify; ">"Any person may file an amparo action to find out and to learn the purpose of data about him which is on record in public registries or data banks, or in any private [registers or data banks] whose purpose is to provide information, and in case of falsity or discrimination, to demand the suppression, rectification, confidentiality, or updating of the same. The secrecy of journalistic information sources shall not be affected."<a href="#fn12" name="fr12">[12] </a></p>
<p style="text-align: justify; ">The version of Habeas Data recognised in Argentina includes most of the protections seen in Brazil and Paraguay, such as the right to access the data, rectify it, update it or destroy it, etc. Nevertheless, the Argentinean constitution also includes certain other features such as the fact that it incorporates the Peruvian idea of confidentiality of data, being interpreted as the prohibition to broadcast or transmit incorrect or false information. Another feature of the Argentinean law is that it specifically excludes the press from the action, which may be considered as reasonable or unreasonable depending upon the context and country in which it is applied.<a href="#fn13" name="fr13">[13] </a></p>
<p style="text-align: justify; "><b>Venezuela</b><br />Article 28 of the Constitution of Venezuela established the writ of habeas data, which expressly permits access to information stored in official and private registries. It states as follows:</p>
<p style="text-align: justify; ">"All individuals have a right to access information and data about themselves and about their property stored in official as well as private registries. Secondly, they are entitled to know the purpose of and the policy behind these registries. Thirdly, they have a right to request, before a competent tribunal, the updating, rectification, or destruction of any database that is inaccurate or that undermines their entitlements. The law shall establish exceptions to these principles. By the same token, any person shall have access to information that is of interest to communities and groups. The secrecy of the sources of newspapers-and of other entities or individuals as defined by law-shall be preserved."<a href="#fn14" name="fr14">[14] </a></p>
<p style="text-align: justify; ">The Venezuelan writ of habeas data expressly provides that individuals "are entitled to know the purpose of and the policy behind these registries." Also, it expresses a right to "updating, rectification, or destruction of any database that is inaccurate or that undermines their entitlements." Article 28 also declares that the “secrecy of the sources of newspapers and of other entities or individuals as defined by law-shall be preserved."<a href="#fn15" name="fr15">[15] </a></p>
<p style="text-align: justify; "><b>Philippines</b></p>
<p style="text-align: justify; ">It is not as if the remedy of Habeas Data is available only in Latin American jurisdictions, but even in Asia the writ of Habeas Data has been specifically granted by the Supreme Court of the Philippines vide its resolution dated January 22, 2008 which provides that “The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.” According to the Rule on Writ of Habeas Data, the petition is to be filed with the Regional Trial Court where the petitioner or respondent resides, or which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner. The petition may also be filed with the Supreme Court or the Court of Appeals or the Sandiganbayan when the action concerns public data files of government offices.<a href="#fn16" name="fr16">[16] </a></p>
<p style="text-align: justify; ">Two major distinctions are immediately visible between the Philippine right and that in the latin jurisdictions discussed above. One is the fact that in countries such as Bazil, Argentina and Paraguay, there does not appear to be a prerequisite to filing such an action asking for the information, whereas in Philippines it seems that such a petition can only be filed only if an individual’s “right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission”. This means that the Philippine concept of habeas data is much more limited in its scope and is available to the citizens only under certain specific conditions. On the other hand the scope of the Philippine right of Habeas Data is much wider in its applicability in the sense that this right is available even against private individual and entities who are “engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence”. In the Latin American jurisdictions discussed above, this writ appears to be available only against either public institutions or private institutions having some public character.</p>
<h3 style="text-align: justify; ">Main features of Habeas Data</h3>
<p style="text-align: justify; ">Thus from the discussion above, the main features of the writ of habeas data, as it is applied in various jurisdictions can be culled out as follows: <a href="#fn17" name="fr17">[17] </a></p>
<ul style="text-align: justify; ">
<li>It is a right to the individual or citizen to ask for his/her information contained with any data registry;</li>
<li>It is available only against public (government) entities or employees; or private entities having a public character;<a href="#fn18" name="fr18">[18] </a> </li>
<li>Usually it also gives the individuals the right to correct any wrong information contained in the data registry;</li>
<li>It is a remedy that is usually available by approaching any single judicial forum.</li>
</ul>
<p style="text-align: justify; ">Since the writ of Habeas Data has been established and evolved primarily in Latin American countries, there is not too much literature on it available freely in the English language and that is a serious hurdle in researching this area. For example, this author did not find many article mentioning the scope of the writ of habeas data, for example whether it is an absolute right and on what grounds can it be denied. The Constitution of Venezuela, for example, specifies that the law shall establish exceptions to these principles and infact mentions the secrecy of sources for newspapers as an exception to this rule.<a href="#fn19" name="fr19">[19] </a></p>
<p style="text-align: justify; ">Similarly in Argentina, there exists a public interest exception to the issuance of the writ of Habeas Data.<a href="#fn20" name="fr20">[20] </a></p>
<p style="text-align: justify; ">That said, although little literature on the specific exceptions to habeas data is freely available in English, references can still be found to exceptions such as state security (Brazil), secrecy of newspaper sources (Argentina and Venezuela), or other entities defined by law (Venezuela).<a href="#fn21" name="fr21">[21] </a></p>
<p style="text-align: justify; ">This suggests that the, as would be expected, the right to ask for the writ of habeas data is not an absolute right but would also be subject to certain exceptions and balanced against other needs such as state security and police investigations.</p>
<h3 style="text-align: justify; ">Habeas Data in the context of Privacy</h3>
<p style="text-align: justify; ">Data protection legislation and mechanisms protect people against misuse of personal information by data controllers. Habeas Data, being a figure for use only by certain countries, gives the individuals the right to access, correct, and object to the processing of their information.</p>
<p style="text-align: justify; ">In general, privacy is the genus and data protection is the species, data protection is a right to personal privacy that people have against the possible use of their personal data by data controllers in an unauthorized manner or against the requirements of force. Habeas Data is an action that is brought before the courts to allow the protection of the individual’s image, privacy, honour, self-determination of information and freedom of information of a person. In that sense, the right of Habeas Data can be found within the broader ambit of data protection. It does not require data processors to ensure the protection of personal data processed but is a legal action requiring the person aggrieved, after filing a complaint with the courts of justice, the access and/or rectification to any personal data which may jeopardize their right to privacy.<a href="#fn22" name="fr22">[22] </a></p>
<h3 style="text-align: justify; ">Habeas Data in the Indian Context</h3>
<p style="text-align: justify; ">Although a number of judgments of the Apex Court in India have recognised the existence of a right to privacy by interpreting the fundamental rights to life and free movement in the Constitution of India,<a href="#fn23" name="fr23">[23] </a></p>
<p style="text-align: justify; ">the writ of habeas data has no legal recognition under Indian law. However, as is evident from the discussion above, a writ of habeas data is very useful in protecting the right to privacy of individuals and it would be a very useful tool to have in the hands of the citizens. The fact that India has a fairly robust right to information legislation means that atleast some facets of the right of habeas data are available under Indian law. We shall now examine the Indian Right to Information Act, 2005 (RTI Act) to see what facets of habeas data are already available under this Act and what aspects are left wanting. As mentioned above, the writ of habeas data has the following main features:</p>
<ul style="text-align: justify; ">
<li>It is a right to the individual or citizen to ask for his/her information contained with any data registry;</li>
<li>It is available only against public (government) entities or employees; or private entities having a public character;<a href="#fn24" name="fr24">[24] </a></li>
<li>Usually it also gives the individuals the right to correct any wrong information contained in the data registry;</li>
<li>It is a remedy that is usually available by approaching any single judicial forum.</li>
</ul>
<p style="text-align: justify; ">We shall now take each of these features and analyse whether the RTI Act provides any similar rights and how they differ from each other.</p>
<p style="text-align: justify; "><b>Right to seek his/her information contained with a data registry</b></p>
<p style="text-align: justify; ">Habeas data enables the individual to seek his or her information contained in any data registry. The RTI Act allows citizens to seek “information” which is under the control of or held by any public authority. The term information has been defined under the RTI Act to mean “any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force”.<a href="#fn25" name="fr25">[25] </a></p>
<p style="text-align: justify; ">Further, the term “record” has been defined to include “(a) any document, manuscript and file; (b) any microfilm, microfiche and facsimile copy of a document; (c) any reproduction of image or images embodied in such microfilm (whether enlarged or not); and (d) any other material produced by a computer or any other device”. It is quite apparent that the meaning given to the term information is quite wide and can include various types of information within its fold. The term “information” as defined in the RTI Act has been further elaborated by the Supreme Court in the case of Central Board of Secondary Education v. Aditya Bandopadhyay,<a href="#fn26" name="fr26">[26] </a></p>
<p style="text-align: justify; ">where the Court has held that a person’s evaluated answer sheet for the board exams held by the CBSE would come under the ambit of “information” and should be accessible to the person under the RTI Act.<a href="#fn27" name="fr27">[27] </a></p>
<p style="text-align: justify; ">An illustrative list of items that have been considered to be “information” under the RTI Act would be helpful in further understanding the concept:</p>
<ol style="text-align: justify; ">
<li>Asset declarations by Judges;<a href="#fn28" name="fr28">[28]</a></li>
<li>Copy of inspection report prepared by the Reserve Bank of India about a Co-operative Bank;<a href="#fn29" name="fr29">[29] </a></li>
<li>Information on the status of an enquiry;<a href="#fn30" name="fr30">[30] </a></li>
<li>Information regarding cancellation of an appointment letter;<a href="#fn31" name="fr31">[31] </a></li>
<li>Information regarding transfer of services;<a href="#fn32" name="fr32">[32] </a></li>
<li>Information regarding donations given by the President of India out of public funds.<a href="#fn33" name="fr33">[33] </a></li>
</ol>
<p style="text-align: justify; ">The above list would indicate that any personal information relation to an individual that is available in a government registry would in all likelihood be considered as “information” under the RTI Act.</p>
<p style="text-align: justify; ">However, just because the information asked for is considered to come within the ambit of section 2(h) does not mean that the person will be granted access to such information if it falls under any of the exceptions listed in section 8 of the RTI Act. Section 8 provides that if the information asked falls into any of the categories specified below then such information shall not be released in an application under the RTI Act, the categories are:</p>
<p style="text-align: justify; ">"(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; <br />(b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court; <br />(c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature; <br />(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; <br />(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; <br />(f) information received in confidence from foreign Government; <br />(g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes; <br />(h) information which would impede the process of investigation or apprehension or prosecution of offenders; <br />(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: <br />Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: <br />Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; <br />(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: <br />Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person."</p>
<p style="text-align: justify; ">The above mentioned exceptions seem fairly reasonable and infact are important since public records may contain information of a private nature which the data subject would not want revealed, and that is exactly why personal information is a specific exception mentioned under the RTI Act. When comparing this list to the recognised exceptions under habeas data, it must be remembered that a number of the exceptions listed above would not be relevant in a habeas data petition such as commercial secrets, personal information, etc. The exceptions which could be relevant for both the RTI Act as well as a habeas data writ would be (a) national security or sovereignty, (b) prohibition on publication by a court, (c) endangering the physical safety of a person, (d) hindrance in investigation of a crime. It is difficult to imagine a court (especially in India) granting a habeas data writ in violation of these four exceptions.</p>
<p style="text-align: justify; ">Certain other exceptions that may be relevant in a habeas data context but are not mentioned in the common list above are (a) information received in a fiduciary relationship; (b) breach of legislative privilege, (c) cabinet papers; and (d) information received in confidence from a foreign government. These four exceptions are not as immediately appealing as the others listed above because there are obviously competing interests involved here and different jurisdictions may take different points of view on these competing interests.<a href="#fn34" name="fr34">[34] </a></p>
<p style="text-align: justify; ">Available only against public (government) entities or entities having public character.</p>
<p style="text-align: justify; ">A habeas corpus writ is maintainable in a court to ask for information relating to the petitioner held by either a public entity or a private entity having a public character. In India, the right to information as defined in the RTI Act means the right to information accessible under the Act held by or under the control of any public authority. The term "public authority" has been defined under the Act to mean “any authority or body or institution of self-government established or constituted—</p>
<p style="text-align: justify; ">(a) by or under the Constitution;<br />(b) by any other law made by Parliament;<br />(c) by any other law made by State Legislature;<br />(d) by notification issued or order made by the appropriate Government, and includes any— (i) body owned, controlled or substantially financed; (ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;"<a href="#fn35" name="fr35">[35] </a></p>
<p style="text-align: justify; ">Therefore most government departments as well as statutory as well as government controlled corporations would come under the purview of the term "public authority". For the purposes of the RTI Act, either control or substantial financing by the government would be enough to bring an entity under the definition of public authority.<a href="#fn36" name="fr36">[36]</a></p>
<p style="text-align: justify; ">The above interpretation is further bolstered by the fact that the preamble of the RTI Act contains the term “governments and their instrumentalities".<a href="#fn37" name="fr37">[37] </a></p>
<p style="text-align: justify; "><b>Right to correct wrong information</b> <br />While certain sectoral legislations such as the Representation of the People Act and the Collection of Statistics Act, etc. may provide for correction of inaccurate information, the RTI Act does not have any such provisions. This stands to reason because the RTI Act is not geared towards providing people with information about themselves but is instead a transparency law which is geared at dissemination of information, which may or may not relate to an individual.</p>
<p style="text-align: justify; "><b>Available upon approaching a single judicial forum<br /></b>While the right of habeas data is available only upon approaching a judicial forum, the right to information under the RTI Act is realised entirely through the bureaucratic machinery. This also means that the individuals have to approach different entities in order to get the information that they need instead of approaching just one centralised entity.</p>
<h3 style="text-align: justify; ">Conclusion</h3>
<p style="text-align: justify; ">There is no doubt that habeas data, by itself cannot end massive electronic surveillance of the kind that is being carried out by various governments in this day and age and the excessive collection of data by private sector companies, but providing the citizenry with the right to ask for such a writ would provide a critical check on such policies and practices of vast surveillance.<a href="#fn38" name="fr38">[38] </a></p>
<p style="text-align: justify; ">An informed citizenry, armed with a right such as habeas data, would be better able to learn about the information being collected and kept on them under the garb of law and governance, to access such information, and to demand its correction or deletion when its retention by the government is not justified.</p>
<p style="text-align: justify; ">As we have discussed in this paper, under Indian law the RTI Act gives the citizens certain aspects of this right but with a few notable exceptions. Therefore, if a writ such as habeas data is to be effectuated in India, it might perhaps be a better idea to approach it by amending/tweaking the existing structure of the RTI Act to grant individuals the right to correct mistakes in the data along with creating a separate department/mechanism so that the applications demanding access to one’s own data do not have to be submitted in different departments but can be submitted at one central place. This approach may be more pragmatic rather than asking for a change in the Constitution to grant to the citizens the right to ask for a writ in the nature of habeas data.</p>
<p style="text-align: justify; ">There may be calls to also include private data processors within the ambit of the right to habeas data, but it could be challenging to enforce this right. This is because it is still feasible to assume that the government can put in place machinery to ensure that it can find out whether information about a particular individual is available with any of the government’s myriad departments and corporations, however it would be almost impossible for the government to track every single private database and then scan those databases to find out how many of them contain information about any specific individual. This also throws up the question whether a right such as habeas data, which originated in a specific context of government surveillance, is appropriate to protect the privacy of individuals in the private sector. Since under Indian law section 43A and the Rules thereunder, which regulate data protection, already provide for consent and notice as major bulwarks against unauthorised data collection, and limit the purpose for which such data can be utilised, privacy concerns in this context can perhaps be better addressed by strengthening these provisions rather than trying to extend the concept of habeas data to the private sector.</p>
<hr style="text-align: justify; " />
<p style="text-align: justify; ">[<a href="#fr1" name="fn1">1</a>]. González, Marc-Tizoc, ‘Habeas Data: Comparative Constitutional Interventions from Latin America Against Neoliberal States of Insecurity and Surveillance’, (2015). Chicago-Kent Law Review, Vol. 90, No. 2, 2015; St. Thomas University School of Law (Florida) Research Paper No. 2015-06. Available at SSRN:<a href="http://ssrn.com/abstract=2694803">http://ssrn.com/abstract=2694803</a></p>
<p style="text-align: justify; ">[<a href="#fr2" name="fn2">2</a>]. Article 8 of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, 1981, available at <a href="https://www.coe.int/en/web/conventions/full-list/-/conventions/rms/0900001680078b37">https://www.coe.int/en/web/conventions/full-list/-/conventions/rms/0900001680078b37</a></p>
<p style="text-align: justify; ">[<a href="#fr3" name="fn3">3</a>]. Guadamuz A, 'Habeas Data: The Latin-American Response to Data Protection',<a href="https://www2.warwick.ac.uk/fac/soc/law/elj/jilt/">2000 (2)</a> <i>The Journal of Information, Law and Technology (JILT)</i>.</p>
<p style="text-align: justify; ">[<a href="#fr4" name="fn4">4</a>]. <i>Id.</i></p>
<p style="text-align: justify; ">[<a href="#fr5" name="fn5">5</a>]. Speech by Chief Justice Reynato Puno, Supreme Court of Philippines delivered at the <i>UNESCO Policy Forum and Organizational Meeting of the Information for all Program (IFAP), Philippine National Committee</i>, on November 19, 2007, available at <a href="http://jlp-law.com/blog/writ-of-habeas-data-by-chief-justice-reynato-puno/">http://jlp-law.com/blog/writ-of-habeas-data-by-chief-justice-reynato-puno/</a></p>
<p style="text-align: justify; ">[<a href="#fr6" name="fn6">6</a>]. Guadamuz A, 'Habeas Data: The Latin-American Response to Data Protection',<a href="https://www2.warwick.ac.uk/fac/soc/law/elj/jilt/">2000 (2)</a> <i>The Journal of Information, Law and Technology (JILT)</i>.</p>
<p style="text-align: justify; ">[<a href="#fr7" name="fn7">7</a>]. The author does not purport to be an expert on the laws of these jurisdictions and the analysis in this paper has been based on a reading of the actual text or interpretations given in the papers that have been cited as the sources. The views in this paper should be viewed keeping this context in mind.</p>
<p style="text-align: justify; ">[<a href="#fr8" name="fn8">8</a>]. Article 5, LXXII of the Constitution of Brazil, available at <a href="https://www.constituteproject.org/constitution/Brazil_2014.pdf">https://www.constituteproject.org/constitution/Brazil_2014.pdf</a></p>
<p style="text-align: justify; ">[<a href="#fr9" name="fn9">9</a>]. Guadamuz A, 'Habeas Data vs the European Data Protection Directive', Refereed article, <a href="https://www2.warwick.ac.uk/fac/soc/law/elj/jilt/">2001 (3)</a> <i>The Journal of Information, Law and Technology (JILT)</i>.</p>
<p style="text-align: justify; ">[<a href="#fr10" name="fn10">10</a>]. Article 135 of the Constitution of Paraguay, available at <a href="https://www.constituteproject.org/constitution/Paraguay_2011.pdf?lang=en">https://www.constituteproject.org/constitution/Paraguay_2011.pdf?lang=en</a></p>
<p style="text-align: justify; ">[<a href="#fr11" name="fn11">11</a>]. The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.</p>
<p style="text-align: justify; ">[<a href="#fr12" name="fn12">12</a>]. Article 43 of the Constitution of Argentina, available at <a href="https://www.constituteproject.org/constitution/Argentina_1994.pdf?lang=en">https://www.constituteproject.org/constitution/Argentina_1994.pdf?lang=en</a></p>
<p style="text-align: justify; ">[<a href="#fr13" name="fn13">13</a>].<a class="external-link" href="https://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2001_3/guadamuz/"> https://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2001_3/guadamuz/</a></p>
<p style="text-align: justify; ">[<a href="#fr14" name="fn14">14</a>]. Article 28 of the Venezuelan Constitution, available at <a href="http://www.venezuelaemb.or.kr/english/ConstitutionoftheBolivarianingles.pdf">http://www.venezuelaemb.or.kr/english/ConstitutionoftheBolivarianingles.pdf</a></p>
<p style="text-align: justify; ">[<a href="#fr15" name="fn15">15</a>]. González, Marc-Tizoc, ‘Habeas Data: Comparative Constitutional Interventions from Latin America Against Neoliberal States of Insecurity and Surveillance’, (2015). Chicago-Kent Law Review, Vol. 90, No. 2, 2015; St. Thomas University School of Law (Florida) Research Paper No. 2015-06. Available at SSRN:<a href="http://ssrn.com/abstract=2694803">http://ssrn.com/abstract=2694803</a></p>
<p style="text-align: justify; ">[<a href="#fr16" name="fn16">16</a>]. Rule on the Writ of Habeas Data Resolution, available at <a class="external-link" href="http://hrlibrary.umn.edu/research/Philippines/Rule%20on%20Habeas%20Data.pdf">http://hrlibrary.umn.edu/research/Philippines/Rule%20on%20Habeas%20Data.pdf</a></p>
<p style="text-align: justify; ">[<a href="#fr17" name="fn17">17</a>]. The characteristics of habeas data culled out in this paper are by no means exhaustive and based only on the analysis of the jurisdictions discussed in this paper. This author does not claim to have done an exhaustive analysis of every jurisdiction where Habeas Data is available and the views in this paper should be viewed in that context.</p>
<p style="text-align: justify; ">[<a href="#fr18" name="fn18">18</a>]. Except in the case of the Philippines and Venezeula. This paper has not done an analysis of the writ of habeas data in every jurisdiction where it is available and there may be jurisdictions other than the Philippines which also give this right against private entities.</p>
<p style="text-align: justify; ">[<a href="#fr19" name="fn19">19</a>]. González, Marc-Tizoc, ‘Habeas Data: Comparative Constitutional Interventions from Latin America Against Neoliberal States of Insecurity and Surveillance’, (2015). Chicago-Kent Law Review, Vol. 90, No. 2, 2015; St. Thomas University School of Law (Florida) Research Paper No. 2015-06. Available at SSRN:<a href="http://ssrn.com/abstract=2694803">http://ssrn.com/abstract=2694803</a></p>
<p style="text-align: justify; ">[<a href="#fr20" name="fn20">20</a>]. The case of <i>Ganora v. Estado Nacional</i>, Supreme Court of Argentina, September 16, 1999, <i>cf.</i><a href="http://www.worldlii.org/int/journals/EPICPrivHR/2006/PHR2006-Argentin.html">http://www.worldlii.org/int/journals/EPICPrivHR/2006/PHR2006-Argentin.html</a></p>
<p style="text-align: justify; ">[<a href="#fr21" name="fn21">21</a>]. González, Marc-Tizoc, ‘Habeas Data: Comparative Constitutional Interventions from Latin America Against Neoliberal States of Insecurity and Surveillance’, (2015). Chicago-Kent Law Review, Vol. 90, No. 2, 2015; St. Thomas University School of Law (Florida) Research Paper No. 2015-06. Available at SSRN:<a href="http://ssrn.com/abstract=2694803">http://ssrn.com/abstract=2694803</a></p>
<p style="text-align: justify; ">[<a href="#fr22" name="fn22">22</a>].<a href="http://www.oas.org/dil/data_protection_privacy_habeas_data.htm"> http://www.oas.org/dil/data_protection_privacy_habeas_data.htm</a></p>
<p style="text-align: justify; ">[<a href="#fr23" name="fn23">23</a>]. Even the scope of the right to privacy is currently under review in the Supreme Court of India. See “Right to Privacy in Peril”, <a href="http://cis-india.org/internet-governance/blog/right-to-privacy-in-peril">http://cis-india.org/internet-governance/blog/right-to-privacy-in-peril</a></p>
<p style="text-align: justify; ">[<a href="#fr24" name="fn24">24</a>]. Except in the case of the Philippines. This paper has not done an analysis of the writ of habeas data in every jurisdiction where it is available and there may be jurisdictions other than the Philippines which also give this right against private entities.</p>
<p style="text-align: justify; ">[<a href="#fr25" name="fn25">25</a>]. Section 2(f) of the Right to Information Act, 2005.</p>
<p style="text-align: justify; ">[<a href="#fr26" name="fn26">26</a>]. 2011 (106) AIC 187 (SC), also available at <a href="http://judis.nic.in/supremecourt/imgst.aspx?filename=38344">http://judis.nic.in/supremecourt/imgst.aspx?filename=38344</a></p>
<p style="text-align: justify; ">[<a href="#fr27" name="fn27">27</a>]. The exact words of the Court were: “The definition of `information' in section 2(f) of the RTI Act refers to any material in any form which includes records, documents, opinions, papers among several other enumerated items. The term `record' is defined in section 2(i) of the said Act as including any document, manuscript or file among others. When a candidate participates in an examination and writes his answers in an answer-book and submits it to the examining body for evaluation and declaration of the result, the answer-book is a document or record. When the answer-book is evaluated by an examiner appointed by the examining body, the evaluated answer-book becomes a record containing the `opinion' of the examiner. Therefore the evaluated answer-book is also an `information' under the RTI Act.”</p>
<p style="text-align: justify; ">[<a href="#fr28" name="fn28">28</a>]. <i>Secretary General, Supreme Court of India</i> v. <i>Subhash Chandra Agarwal</i>, AIR 2010 Del 159, available at <a href="https://indiankanoon.org/doc/1342199/">https://indiankanoon.org/doc/1342199/</a></p>
<p style="text-align: justify; ">[<a href="#fr29" name="fn29">29</a>].<i> Ravi Ronchodlal Patel</i> v. <i>Reserve Bank of India</i>, Central Information Commission, dated 6-9-2006.</p>
<p style="text-align: justify; ">[<a href="#fr30" name="fn30">30</a>].<i> Anurag Mittal</i> v. <i>National Institute of Health and Family Welfare</i>, Central Information Commission, dated 29-6-2006.</p>
<p style="text-align: justify; ">[<a href="#fr31" name="fn31">31</a>].<i> Sandeep Bansal</i> v. <i>Army Headquarters, Ministry of Defence</i>, Central Information Commission, dated 10-11-2008.</p>
<p style="text-align: justify; ">[<a href="#fr32" name="fn32">32</a>].<i> M.M. Kalra</i> v. <i>DDA</i>, Central Information Commission, dated 20-11-2008.</p>
<p style="text-align: justify; ">[<a href="#fr33" name="fn33">33</a>].<i> Nitesh Kumar Tripathi</i> v. <i>CPIO</i>, Central Information Commission, dated 4-5-2012.</p>
<p style="text-align: justify; ">[<a href="#fr34" name="fn34">34</a>]. A similar logic may apply to the exceptions of (i) cabinet papers, and (ii) parliamentary privilege.</p>
<p style="text-align: justify; ">[<a href="#fr35" name="fn35">35</a>]. Section 2 (h) of the Right to Information Act, 2005.</p>
<p style="text-align: justify; ">[<a href="#fr36" name="fn36">36</a>].<i> M.P. Verghese</i> v. <i>Mahatma Gandhi University</i>, 2007 (58) AIC 663 (Ker), available at <a href="https://indiankanoon.org/doc/1189278/">https://indiankanoon.org/doc/1189278/</a></p>
<p style="text-align: justify; ">[<a href="#fr37" name="fn37">37</a>].<i> Principal, M.D. Sanatan Dharam Girls College, Ambala City</i> v. <i>State Information Commissioner</i>, AIR 2008 P&H 101, available at <a href="https://indiankanoon.org/doc/1672120/">https://indiankanoon.org/doc/1672120/</a></p>
<p style="text-align: justify; ">[<a href="#fr38" name="fn38">38</a>]. González, Marc-Tizoc, ‘Habeas Data: Comparative Constitutional Interventions from Latin America Against Neoliberal States of Insecurity and Surveillance’, (2015). Chicago-Kent Law Review, Vol. 90, No. 2, 2015; St. Thomas University School of Law (Florida) Research Paper No. 2015-06. Available at SSRN:<a href="http://ssrn.com/abstract=2694803">http://ssrn.com/abstract=2694803</a></p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/habeas-data-in-india'>http://editors.cis-india.org/internet-governance/blog/habeas-data-in-india</a>
</p>
No publisherVipul Kharbanda and edited by Elonnai HickokFeaturedHabeas DataInternet GovernancePrivacy2016-12-10T04:01:40ZBlog EntryCIS Submission to TRAI Consultation Note on Model for Nation-wide Interoperable and Scalable Public Wi-Fi Networks
http://editors.cis-india.org/telecom/blog/cis-submission-trai-note-on-interoperable-scalable-public-wifi
<b>This submission presents responses by the CIS on the Consultation Note on Model for Nation-wide Interoperable and Scalable Public Wi-Fi Networks published by the TRAI on November 15, 2016. Our analysis of the solution proposed in the Note, in brief, is that there is no need of a solution for non-existing interoperability problem for authentication and payment services for accessing public Wi-Fi networks. The proposed solution in this Note only adds to over-regulation in this sector, and does not incentivise new investment in the sector, but only establishes UIDAI and NPCI as the monopoly service providers for authentication and payment services.</b>
<p> </p>
<p>The comments were authored by Japreet Grewal, Pranesh Prakash, Sharath Chandra, Sumandro Chattapadhyay, Sunil Abraham, and Udbhav Tiwari, with expert comments from Amelia Andersdotter.</p>
<hr />
<h2>1. Preliminary</h2>
<p><strong>1.1.</strong> This submission presents responses by the Centre for Internet and Society (“CIS”) <strong>[1]</strong> on the <em>Consultation Note on Model for Nation-wide Interoperable and Scalable Public Wi-Fi Networks</em> (“the Note”) published by the Telecom Regulatory Authority of India (“TRAI”) on November 15, 2016 <strong>[2]</strong>.</p>
<p><strong>1.2.</strong> The CIS welcomes the effort undertaken by TRAI to map regulatory and other barriers to deployment of public Wi-Fi in India. We especially appreciate that TRAI has recognised <strong>[3]</strong> two key barriers to provision of public Wi-Fi networks identified and highlighted in our earlier response to the <em>Consultation Paper on Proliferation of Broadband through Public WiFi</em> <strong>[4]</strong>: 1) over regulation (including, licensing requirements, data retention, and Know Your Customer policy), and 2) paucity of spectrum <strong>[5]</strong>.</p>
<h2>2. General Responses</h2>
<p><strong>2.1.</strong> Before responding to the specific questions posed by the Note, we would like to make the following observations.</p>
<p><strong>2.2.</strong> There is no need of a solution for non-existing interoperability problem for authentication and payment services for accessing public Wi-Fi networks. The proposed solution in this Note only adds to over-regulation in this sector. The proposed solution does not incentivise new investment in the sector, but only establishes UIDAI and NPCI as the monopoly service providers for authentication and payment services.</p>
<p><strong>2.3.</strong> As the TRAI has consulted widely with industry and other stakeholders before it settled on the list of priority issues contained in Section C.6 of the Note, we are surprised to find that this Note aims to address only the problem of lack of “seamless interoperable payment system for Wi-Fi networks” (Section C.6.d. Of the Note), and does not discuss and propose solutions for any other key barriers identified by the Note.</p>
<p><strong>2.4.</strong> The Note fails to clarify the “interoperability” problem in the payment system for usage of public Wi-Fi networks that it is attempting to solve. The Note identifies that lack of “single standard” for “authentication and payment mechanisms” for accessing public Wi-Fi networks as a key impediment to provide scalable and interoperable public Wi-Fi networks across the country <strong>[6]</strong>. By conceptualising the problem in this manner, TRAI has bundled together two completely different concerns - authentication and payment - into one and this is at the root of the problems emanating from the proposed solution in this Note.</p>
<p><strong>2.5.</strong> Lack of standard process for authentication is created by over-regulation via Know Your Customer (“KYC”) policies, and selection of eKYC service provided by UIDAI as the only acceptable authentication mechanism for all users of public Wi-Fi networks across India, creating further economic and legal challenges for smaller would-be providers of public Wi-Fi networks as they assess their liabilities and start-up costs. Additionally, since this would amount to making UID/Aadhaar enrolment mandatory for any user of public wi-fi networks, it seems to create a contradiction with previously communicated policy from the UIDAI and the Government that no such obligation should arise. Supreme Court has also mandated over successive Orders that enrolment for UID/Aadhaar number should remain optional for the citizens and residents.</p>
<p><strong>2.6.</strong> As was observed by the respondents to the TRAI Consultation concluded earlier this year, there is no interoperability problem that needs to be solved regarding payments for accessing public Wi-Fi networks. Payment services continue to be evolved and payment aggregator services provided by existing companies may be expected to resolve many of the outstanding issues of service proliferation in the upcoming years, at least in the absence of additional mandatory technical measures imposed by the government. Bundling of payment with authentication will only undermine the already existing independent market for payment aggregators, and further enforce mandatoriness of UID/Aadhaar number.</p>
<p><strong>2.7.</strong> Further, the payment mechanism proposed would seem to worsen difficulties for tourists and foreigners in accessing public Wi-Fi in India, as well adds an additional layer of authentication in a system already identified (even in the Note itself) to be overburdened by regulations regarding KYC and data retention. Section C.6.b of the Note highlights the problems faced by foreigners and tourists when the authentication mechanism is premised upon use of One Time Password (OTP) that requires a functioning local mobile phone number. It contradicts itself later by proposing an authentication method that requires the user to not only download an application onto their mobile/desktop device, but also to enrol for UID/Aadhaar number and/or to use their existing UID/Aadhaar number. Instead of reducing the existing barriers to provision of and access to public Wi-Fi, which the Note is supposed to achieve, it creates significant new barriers.</p>
<p><strong>2.8.</strong> The technological architecture advanced by the Note upholds support of governance and surveillance projects that, in addition to being costly in their implementation and thereby slowing down the objective of getting India connected, are also of questionable value to the security of the Indian polity. UID, UPI, and related projects risk undermining cyber-security through their reliance on centralised architectures and interfere with healthy competitive market dynamics between commercial and non-commercial actors.</p>
<p><strong>2.9.</strong> The Note continues to only consider and enable commercial models for the provision of public Wi-Fi networks. We have identified this as a problematic assumption in our last submission <strong>[7]</strong>. It is most crucial that TRAI does not ignore and fail to promote and facilitate the possibility of not-for-profit models that involve grassroot communities, academia, and civil society.</p>
<p><strong>2.10.</strong> Last but not the least, the term “Wi-Fi” refers to a particular technology for establishing wireless local area networks. Further, the term is a trademark of the Wi-Fi Alliance <strong>[8]</strong>. It is this not a neutral term, and it must not be used as a general and universal synonym for wireless local area networks. We recommend that TRAI may consider using a technology-neutral term, say “public wireless services” or “public networking services”, to describe the sector. Following the terminology used in the Note, we have decided to continue using the term “Wi-Fi” in this response. This does not reflect our agreement about the appropriateness of this term. Important: The recommendation for technology-neutral regulation also comes with the qualification that safeguards like regulations on Listen Before Talk and Cycle Time are required to prevent technologies like LTE-U from squatting on spectrum and interfering with connections based on other standards.</p>
<h2>3. Specific Responses</h2>
<h4>Q1. Is the architecture suggested in the consultation note for creating unified authentication and payment infrastructure will enable nationwide standard for authentication and payment interoperability?</h4>
<p><strong>3.1.</strong> No. The proposed infrastructure is likely to be costly for a large number of actors to implement and undermine some of the ongoing innovation in the Indian digital payment services industry. Rather than being helpful, it risks introducing additional requirements on an industry that TRAI has already identified as facing a number of large challenges.</p>
<p><strong>3.2.</strong> There is no need for a unified architecture that provides nationwide standard for authentication and payment interoperability. It does not offer any incentive towards provision of public Wi-Fi networks. Neither is there an interoperability problem at the physical or data link layers that has been pointed out, nor is government mandated interoperability required at the payment or ID layer since there are private entities that provide such interoperability (like, payment aggregators). Additionally, we believe it is inappropriate that the TRAI is trying to predict the most suitable business/technological model for digital payments to be used for accessing commercial Wi-Fi networks. India has a booming online payments industry, and it must be allowed to evolve in an enabling regulatory environment that allow for competition and ensures responsible practices.</p>
<p><strong>3.3.</strong> The Note identifies several structural impediments to expansion of public Wi-Fi networks in India, namely paucity of backhaul connectivity infrastructure (Section C.6.a), Inadequate associated infrastructure to offer carrier grade Wi-Fi network (Section C.6.c), dependency of authentication mechanism on pre-existing (Indian) mobile phone connection (Section C.6.b), and limited availability of spectrum to be used for public Wi-Fi networks (Section C.6.e). All these are crucial concerns and none of them have been addressed by the architecture suggested in the Note.</p>
<h4>Q2. Would you like to suggest any alternate model?</h4>
<p><strong>3.4.</strong> Yes. The model proposed in the Note is likely to exclude several types of potential users (say, foreigners and tourists), and impose a single authentication and payment service provider for accessing public Wi-Fi networks, which may undermine both competition and security in the market for these services.</p>
<p><strong>3.5.</strong> Internationally, there are cities and regions (say, the city of Barcelona and the Catalonia region in Spain) where public Wi-Fi networks have been provided in a pervasive and efficient manner by taking a light regulatory approach that enables opportunities for potential providers to set up their own infrastructures and additionally have access to backhaul. Further, reducing legal requirements on authentication should be considered in place of government mandated technical architectures for authentication and payment. In particular, allowing for anonymous access to Public Wi-Fi or wireless connectivity would reduce both the administrative and the technical burden on potential providers at the hyper-local level, especially for providers whose main activity it is not, and cannot be, to provide internet services (say, event venues, malls, and shops).</p>
<p><strong>3.6.</strong> The CIS suggests the following steps towards conceptualising an “alternative model”:</p>
<ol><li>remove existing regulatory disincentives,<br /><br /></li>
<li>urgently explore policies to promote deployment of wired infrastructures in general, and to enable a larger range of actors, including local authorities, to invest in and deploy local infrastructures by reducing licensing requirements in particular,<br /><br /></li>
<li>examine spectrum requirements for provision of public Wi-Fi, and<br /><br /></li>
<li>provide incentives, such as allowing telecom service providers to share backhaul traffic over public Wi-Fi, and ways for telecom service providers to lower their costs if they also make Internet access available for free.</li></ol>
<h4>Q3. Can Public Wi-Fi access providers resell capacity and bandwidth to retail users? Is “light touch regulation” using methods such as “registration” instead of “licensing” preferred for them?</h4>
<p><strong>3.7.</strong> CIS holds that capacity and bandwidth are neither comparable to tangible goods nor to digital currency. They are a utility, and the provider of the utility has to accept that their customers use the utility in the way they see fit, even if that use entails sharing said capacity and bandwidth with downstream private persons or customers. Wi-Fi capabilities are currently a built-in standardised feature of all consumer routers. Any individual, community, or store with access to an internet connection and a consumer router could become a public Wi-Fi access provider at no additional cost to themselves, furthering the goals of the Indian government in its Digital India strategy to ensure public and universal access to the internet.</p>
<p><strong>3.8.</strong> In order to exploit the opportunities awarded by a large amount of entities in the Indian society potentially becoming Public Wi-Fi providers, TRAI should require neither registration nor licensing of these actors. Imposing administrative burdens on potential public Wi-Fi access providers creates legal uncertainty and will cause a lot of actors, who may otherwise contribute to the goals of Digital India, not to do so. This is particularly true for community organisers and citizens, who may not have access to legal assistance and therefore may avoid contributing to the goals of the government.</p>
<p><strong>3.9.</strong> Light touch regulation when it comes to both granting license to public Wi-Fi access providers as well as authentication of retail users, however, are needed not only as an exceptional practice for such instances but as a general practice in case of entities offering public Wi-Fi services, either commercially or otherwise. Further, additional laxity in administrative responsibilities is needed to incentivise provision of free, that is non-commercial, public Wi-Fi networks.</p>
<h4>Q4. What should be the regulatory guidelines on “unbundling” Wi-Fi at access and backhaul level?</h4>
<p><strong>3.10.</strong> The Note refers to unbundling of activities related to provision of Wi-Fi but it does not define the term. It is neither explained which specific activities at access and backhaul levels must be considered for unbundling.</p>
<p><strong>3.11.</strong> While unbundling should clearly be allowed and any regulatory hurdles to unbundling should be removed, any such decision must be taken with a focus on urgently addressing the stagnated growth in landline and backhaul, as identified in Section C.6.a of the Note. Relying only on spectrum intensive infrastructures, such as mobile base stations, for providing connectivity, creates a heavy regulatory burden for the TRAI, while simultaneously not ensuring optimal connectivity for business and private users. The CIS is concerned that the focus of the Note on standardising a government-mediated authentication and payment mechanism detracts attention from this urgent obstacle to the fulfillment of the Digital India plans of accelerated provision of broadband highways, universal access, and public, especially free, access to internet services.</p>
<p><strong>3.12.</strong> From the example of European telecommunications legislations, implementation of policy measures to ensure that vertical integration between infrastructure (say, cables, switches, and hubs) providers and service (say, providing a subscriber with a household modem or a SIM card) providers in the telecommunications sector does not become a barrier to new market entrants has yielded much success in countries that have pursued it, like Sweden and Great Britain.</p>
<p><strong>3.13.</strong> Further, there should be no default assumption of bundling by the TRAI. In particular, the TRAI should consider reviewing all regulations that may cause bundling to occur when this is not necessary, and put in place in a monitoring mechanism for ensuring that bundled practises (especially in electronic networks, base station infrastructures, backhaul and similar) do not cause competitive problems or raise market entry barriers <strong>[9]</strong>. In most EU countries, especially where the corporate structure of incumbent(s) is not highly vertically integrated, interconnection requirements for electronic network providers of wired networks in the backhaul or backbone (effectively price regulated interconnection), and a conscious effort to ensure that new market players can enter the field, have ensured a competitive telecommunications environment. TRAI may consider reviewing the European regulation on local loop unbundling (1999) and discussions on functional separation (especially by the British regulatory authority Ofcom), within an Indian context.</p>
<h4>Q5. Whether reselling of bandwidth should be allowed to venue owners such as shop keepers through Wi-Fi at premise? In such a scenario please suggest the mechanism for security compliance.</h4>
<p><strong>3.14.</strong> Yes. Venue owners should be allowed to provide public Wi-Fi service both on a commercial and non-commercial basis.</p>
<p><strong>3.15.</strong> It is not clear from the Note and the question what type of security concerns the TRAI is seeking to address. In terms of payment security, the payment industry already has a large range of verification and testing mechanisms. The CIS objects to the mandatory introduction of the proposed payment system so as to ensure greater security for Wi-Fi access providers and the users.</p>
<p><strong>3.16.</strong> As far as hardware-related security issues are concerned, it is again unclear why consumer equipment compliant with existing Wi-Fi standards would not be sufficiently secure in the Indian context. Wi-Fi has proven to be a sturdy technical standard, its adoption is high in multiple jurisdictions around the world, and it also enjoys great technical stability. Similar security assessments could easily be made for alternative wireless technologies, such as WiMaX.</p>
<p><strong>3.17.</strong> The CIS foresees problems is in the allocation of risk and liability by law. The already existing legal obligation to verify the identity of each user, for instance, is likely to introduce a large administrative burden on potential Public Wi-Fi providers, which may lead to such potential providers abstaining from entering the market. Should the identification requirement be removed, however, other concerns pertaining to legal obligations may arise. These include liability for user activities on the web or on the internet (cf. copyright infringement, libel, hate speech). We propose a “safe harbour” mechanism in these cases, limiting the liability of the potential public Wi-Fi provider.</p>
<h4>Q6. What should be the guidelines regarding sharing of costs and revenue across all entities in the public Wi-Fi value chain? Is regulatory intervention required or it should be left to forbearance and individual contracting?</h4>
<p><strong>3.18.</strong> The market segments identified by the TRAI in Section F.18 of the Note should normally all be competitive markets themselves, and so do not require regulatory assistance in sharing of costs and revenues. The more elaborate the requirements imposed on each actor of each market segment identified by the TRAI in Section F.18, the more costly the roll-out of public Wi-Fi is going to be for the market actors. Such a cost is not avoided by price regulation.</p>
<p><strong>3.19.</strong> The TRAI may instead consider introducing public funding for backhaul roll-out in remote areas, where the market is unlikely to engage in such roll-out on its own. Presently, some Indian states (such as Karnataka) are committing to public funding for wireless access in remote areas. The Union Government can assist such endeavours.</p>
<h2>Endnotes</h2>
<p><strong>[1]</strong> See: <a href="http://cis-india.org/">http://cis-india.org/</a>.</p>
<p><strong>[2]</strong> See: <a href="http://trai.gov.in/Content/ConDis/20801_0.aspx">http://trai.gov.in/Content/ConDis/20801_0.aspx</a>.</p>
<p><strong>[3]</strong> See Section C.6 of the Note.</p>
<p><strong>[4]</strong> See: <a href="http://trai.gov.in/Content/ConDis/20782_0.aspx">http://trai.gov.in/Content/ConDis/20782_0.aspx</a>.</p>
<p><strong>[5]</strong> See: <a href="http://cis-india.org/telecom/blog/cis-submission-to-trai-consultation-on-proliferation-of-broadband-through-public-wifi-networks">http://cis-india.org/telecom/blog/cis-submission-to-trai-consultation-on-proliferation-of-broadband-through-public-wifi-networks</a>.</p>
<p><strong>[6]</strong> See Section E.11. of the Note.</p>
<p><strong>[7]</strong> See: <a href="http://cis-india.org/telecom/blog/cis-submission-to-trai-consultation-on-proliferation-of-broadband-through-public-wifi-networks">http://cis-india.org/telecom/blog/cis-submission-to-trai-consultation-on-proliferation-of-broadband-through-public-wifi-networks</a>.</p>
<p><strong>[8]</strong> See: <a href="https://www.wi-fi.org/">https://www.wi-fi.org/</a>.</p>
<p><strong>[9]</strong> See: Monitoring bundled products in the telecommunications sector is also recommended by the OECD: <a href="http://oecdinsights.org/2015/06/22/triple-and-quadruple-play-bundles-of-communication-services-towards-all-in-one-packages/">http://oecdinsights.org/2015/06/22/triple-and-quadruple-play-bundles-of-communication-services-towards-all-in-one-packages/</a>.</p>
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For more details visit <a href='http://editors.cis-india.org/telecom/blog/cis-submission-trai-note-on-interoperable-scalable-public-wifi'>http://editors.cis-india.org/telecom/blog/cis-submission-trai-note-on-interoperable-scalable-public-wifi</a>
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No publisherJapreet Grewal, Pranesh Prakash, Sharath Chandra, Sumandro Chattapadhyay, Sunil Abraham, and Udbhav Tiwari, with expert comments from Amelia AndersdotterDigital PaymentPublic Wireless NetworkTRAIInternet GovernanceTelecomFeaturedAadhaarHomepageUID2016-12-12T13:59:00ZBlog EntryComments on the Report of the Committee on Digital Payments (December 2016)
http://editors.cis-india.org/internet-governance/blog/comments-on-the-report-of-the-committee-on-digital-payments-dec-2016
<b>The Committee on Digital Payments constituted by the Ministry of Finance and chaired by Ratan P. Watal, Principal Advisor, NITI Aayog, submitted its report on the "Medium Term Recommendations to Strengthen Digital Payments Ecosystem" on December 09, 2016. The report was made public on December 27, and comments were sought from the general public. Here are the comments submitted by the Centre for Internet and Society.</b>
<p> </p>
<h3><strong>1. Preliminary</strong></h3>
<p><strong>1.1.</strong> This submission presents comments by the Centre for Internet and Society (“CIS”) <strong>[1]</strong> in response to the report of the Committee on Digital Payments, chaired by Mr. Ratan P. Watal, Principal Advisor, NITI Aayog, and constituted by the Ministry of Finance, Government of India (“the report”) <strong>[2]</strong>.</p>
<h3><strong>2. The Centre for Internet and Society</strong></h3>
<p><strong>2.1.</strong> The Centre for Internet and Society, CIS, is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus include digital accessibility for persons with diverse abilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, and open access), internet governance, telecommunication reform, digital privacy, and cyber-security.</p>
<p><strong>2.2.</strong> CIS is not an expert organisation in the domain of banking in general and payments in particular. Our expertise is in matters of internet and communication governance, data privacy and security, and technology regulation. We deeply appreciate and are most inspired by the Ministry of Finance’s decision to invite entities from both the sectors of finance and information technology. This submission is consistent with CIS’ commitment to safeguarding general public interest, and the interests and rights of various stakeholders involved, especially the citizens and the users. CIS is thankful to the Ministry of Finance for this opportunity to provide a general response on the report.</p>
<h3><strong>3. Comments</strong></h3>
<p><strong>3.1.</strong> CIS observes that the decision by the Government of India to withdraw the legal tender character of the old high denomination banknotes (that is, Rs. 500 Rs. 1,000 notes), declared on November 08, 2016 <strong>[3]</strong>, have generated <strong>unprecedented data about the user base and transaction patterns of digital payments systems in India, when pushed to its extreme use due to the circumstances</strong>. The majority of this data is available with the National Payments Corporation of India and the Reserve Bank of India. CIS requests the authorities concerned to consider <strong>opening up this data for analysis and discussion by public at large and experts in particular, before any specific policy and regulatory decisions are taken</strong> towards advancing digital payments proliferation in India. This is a crucial opportunity for the Ministry of Finance to embrace (open) data-driven regulation and policy-making.</p>
<p><strong>3.2.</strong> While the report makes a reference to the European General Data Protection Directive, it does not make a reference to any substantive provisions in the Directive which may be relevant to digital payments. Aside from the recommendation that privacy protections around the purpose limitation principle be relaxed to ensure that payment service providers be allowed to process data to improve fraud monitoring and anti-money laundering services, the report is silent on significant privacy and data protection concerns posed by digital payments services. <strong>CIS strongly warns that the existing data protection and security regulations under Information Technology (Reasonable security practices and procedures and sensitive personal data or information), Rules are woefully inadequate in their scope and application to effectively deal with potential privacy concerns posed by digital payments applications and services.</strong> Some key privacy issues that must be addressed either under a comprehensive data protection legislation or a sector specific financial regulation are listed below. The process of obtaining consent must be specific, informed and unambiguous and through a clear affirmative action by the data subject based upon a genuine choice provided along with an option to opt out at any stage. The data subjects should have clear and easily enforceable right to access and correct their data. Further, data subjects should have the right to restrict the usage of their data in circumstances such as inaccuracy of data, unlawful purpose and data no longer required in order to fulfill the original purpose.</p>
<p><strong>3.3.</strong> The initial recommendation of the report is to “[m]ake regulation of payments independent from the function of central banking” (page 22). This involves a fundamental transformation of the payment and settlement system in India and its regulation. <strong>We submit that a decision regarding transformation of such scale and implications is taken after a more comprehensive policy discussion, especially involving a wider range of stakeholders</strong>. The report itself notes that “[d]igital payments also have the potential of becoming a gateway to other financial services such as credit facilities for small businesses and low-income households” (page 32). Thus, a clear functional, and hence regulatory, separation between the (digital) payments industry and the lending/borrowing industry may be either effective or desirable. Global experience tells us that digital transactions data, along with other alternative data, are fast becoming the basis of provision of financial and other services, by both banking and non-banking (payments) companies. We appeal to the Ministry of Finance to adopt a comprehensive and concerted approach to regulating, enabling competition, and upholding consumers’ rights in the banking sector at large.</p>
<p><strong>3.4.</strong> The report recognises “banking as an activity is separate from payments, which is more of a technology business” (page 154). Contemporary banking and payment businesses are both are primarily technology businesses where information technology particularly is deployed intimately to extract, process, and drive asset management decisions using financial transaction data. Further, with payment businesses (such as, pre-paid instruments) offering return on deposited money via other means (such as, cashbacks), and potentially competing and/or collaborating with established banks to use financial transaction data to drive lending decisions, including but not limited to micro-loans, it appears unproductive to create a separation between banking as an activity and payments as an activity merely in terms of the respective technology intensity of these sectors. <strong>CIS firmly recommends that regulation of these financial services and activities be undertaken in a technology-agnostic manner, and similar regulatory regimes be deployed on those entities offering similar services irrespective of their technology intensity or choice</strong>.</p>
<p><strong>3.5.</strong> The report highlights two major shortcomings of the current regulatory regime for payments. Firstly “the law does not impose any obligation on the regulator to promote competition and innovation in the payments market” (page 153). It appears to us that the regulator’s role should not be to promote market expansion and innovation but to ensure and oversee competition. <strong>We believe that the current regulator should focus on regulating the existing market, and the work of the expansion of the digital payments market in particular and the digital financial services market in general be carried out by another government agency, as it creates conflict of interest for the regulator otherwise.</strong> Secondly, the report mentions that Payment and Settlement Systems Act does not “focus the regulatory attention on the need for consumer protection in digital payments” and then it notes that a “provision was inserted to protect funds collected from customers” in 2015 (page 153). <strong>This indicates that the regulator already has the responsibility to ensure consumer protection in digital payments. The purview and modalities of how this function of course needs discussion and changes with the growth in digital payments</strong>.</p>
<p><strong>3.6.</strong> The report identifies the high cost of cash as a key reason for the government’s policy push towards digital payments. Further, it mentions that a “sample survey conducted in 2014 across urban and rural neighbourhoods in Delhi and Meerut, shows that despite being keenly aware of the costs associated with transacting in cash, most consumers see three main benefits of cash, viz. freedom of negotiations, faster settlements, and ensuring exact payments” (page 30). It further notes that “[d]igital payments have significant dependencies upon power and telecommunications infrastructure. Therefore, the roll out of robust and user friendly digital payments solutions to unelectrified areas/areas without telecommunications network coverage, remains a challenge.” <strong>CIS much appreciates the discussion of the barriers to universal adoption and rollout of digital payments in the report, and appeals to the Ministry of Finance to undertake a more comprehensive study of the key investments required by the Government of India to ensure that digital payments become ubiquitously viable as well as satisfy the demands of a vast range of consumers that India has</strong>. The estimates about investment required to create a robust digital payment infrastructure, cited in the report, provide a great basis for undertaking studies such as these.</p>
<p><strong>3.7.</strong> CIS is very encouraged to see the report highlighting that “[w]ith the rising number of users of digital payment services, it is absolutely necessary to develop consumer confidence on digital payments. Therefore, it is essential to have legislative safeguards to protect such consumers in-built into the primary law.” <strong>We second this recommendation and would like to add further that financial transaction data is governed under a common data protection and privacy regime, without making any differences between data collected by banking and non-banking entities</strong>.</p>
<p><strong>3.8.</strong> We are, however, very discouraged to see the overtly incorrect use of the word “Open Access” in this report in the context of a payment system disallowing service when the client wants to transact money with a specific entity <strong>[4]</strong>. This is not an uncommon anti-competitive measure adopted by various platform players and services providers so as to disallow users from using competing products (such as, not allowing competing apps in the app store controlled by one software company). <strong>The term “Open Access” is not only the appropriate word to describe the negation of such anti-competitive behaviour, its usage in this context undermines its accepted meaning and creates confusion regarding the recommendation being proposed by the report.</strong> The closest analogy to the recommendation of the report would perhaps be with the principle of “network neutrality” that stands for the network provider not discriminating between data packets being processed by them, either in terms of price or speed.</p>
<p><strong>3.9.</strong> A major recommendation by the report involves creation of “a fund from savings generated from cash-less transactions … by the Central Government,” which will use “the trinity of JAM (Jan Dhan, Adhaar, Mobile) [to] link financial inclusion with social protection, contributing to improved Social and Financial Security and Inclusion of vulnerable groups/ communities” (page 160-161). <strong>This amounts to making Aadhaar a mandatory ID for financial inclusion of citizens, especially the marginal and vulnerable ones, and is in direct contradiction to the government’s statements regarding the optional nature of the Aadhaar ID, as well as the orders by the Supreme Court on this topic</strong>.</p>
<p><strong>3.10.</strong> The report recommends that “Aadhaar should be made the primary identification for KYC with the option of using other IDs for people who have not yet obtained Aadhaar” (page 163) and further that “Aadhaar eKYC and eSign should be a replacement for paper based, costly, and shared central KYC registries” (page 162). <strong>Not only these measures would imply making Aadhaar a mandatory ID for undertaking any legal activity in the country, they assume that the UIDAI has verified and audited the personal documents submitted by Aadhaar number holders during enrollment.</strong> A mandate for <em>replacement</em> of the paper-based central KYC agencies will only remove a much needed redundancy in the the identity verification infrastructure of the government.</p>
<p><strong>3.11.</strong> The report suggests that “[t]ransactions which are permitted in cash without KYC should also be permitted on prepaid wallets without KYC” (page 164-165). This seems to negate the reality that physical verification of a person remains one of the most authoritative identity verification process for a natural person, apart from DNA testing perhaps. <strong>Thus, establishing full equivalency of procedure between a presence-less transaction and one involving a physically present person making the payment will only amount to removal of relatively greater security precautions for the former, and will lead to possibilities of fraud</strong>.</p>
<p><strong>3.12.</strong> In continuation with the previous point, the report recommends promotion of “Aadhaar based KYC where PAN has not been obtained” and making of “quoting Aadhaar compulsory in income tax return for natural persons” (page 163). Both these measures imply a replacement of the PAN by Aadhaar in the long term, and a sharp reduction in growth of new PAN holders in the short term. <strong>We appeal for this recommendation to be reconsidered as integration of all functionally separate national critical information infrastructures (such as PAN and Aadhaar) into a single unified and centralised system (such as Aadhaar) engenders massive national and personal security threats</strong>.</p>
<p><strong>3.13.</strong> The report suggest the establishment of “a ranking and reward framework” to recognise and encourage for the best performing state/district/agency in the proliferation of digital payments. <strong>It appears to us that creation of such a framework will only lead to making of an environment of competition among these entities concerned, which apart from its benefits may also have its costs. For example, the incentivisation of quick rollout of digital payment avenues by state government and various government agencies may lead to implementation without sufficient planning, coordination with stakeholders, and precautions regarding data security and privacy</strong>. The provision of central support for digital payments should be carried out in an environment of cooperation and not competition.</p>
<p><strong>3.14.</strong> CIS welcomes the recommendation by the report to generate greater awareness about cost of cash, including by ensuring that “large merchants including government agencies should account and disclose the cost of cash collection and cash payments incurred by them periodically” (page 164). It, however, is not clear to whom such periodic disclosures should be made. <strong>We would like to add here that the awareness building must simultaneously focus on making public how different entities shoulder these costs. Further, for reasons of comparison and evidence-driven policy making, it is necessary that data for equivalent variables are also made open for digital payments - the total and disaggregate cost, and what proportion of these costs are shouldered by which entities</strong>.</p>
<p><strong>3.15.</strong> The report acknowledges that “[t]oday, most merchants do not accept digital payments” and it goes on to recommend “that the Government should seize the initiative and require all government agencies and merchants where contracts are awarded by the government to provide at-least one suitable digital payment option to its consumers and vendors” (page 165). This requirement for offering digital payment option will only introduce an additional economic barrier for merchants bidding for government contracts. <strong>We appeal to the Ministry of Finance to reconsider this approach of raising the costs of non-digital payments to incentivise proliferation of digital payments, and instead lower the existing economic and other barriers to digital payments that keep the merchants away</strong>. The adoption of digital payments must not lead to increasing costs for merchants and end-users, but must decrease the same instead.</p>
<p><strong>3.16.</strong> As the report was submitted on December 09, 2016, and was made public only on December 27, 2016, <strong>it would have been much appreciated if at least a month-long window was provided to study and comment on the report, instead of fifteen days</strong>. This is especially crucial as the recently implemented demonetisation and the subsequent banking and fiscal policy decisions taken by the government have rapidly transformed the state and dynamics of the payments system landscape in India in general, and digital payments in particular.</p>
<h3><strong>Endnotes</strong></h3>
<p><strong>[1]</strong> See: <a href="http://cis-india.org/">http://cis-india.org/</a>.</p>
<p><strong>[2]</strong> See: <a href="http://finmin.nic.in/reports/Note-watal-report.pdf">http://finmin.nic.in/reports/Note-watal-report.pdf</a> and <a href="http://finmin.nic.in/reports/watal_report271216.pdf">http://finmin.nic.in/reports/watal_report271216.pdf</a>.</p>
<p><strong>[3]</strong> See: <a href="http://finmin.nic.in/cancellation_high_denomination_notes.pdf">http://finmin.nic.in/cancellation_high_denomination_notes.pdf</a>.</p>
<p><strong>[4]</strong> Open Access refers to “free and unrestricted online availability” of scientific and non-scientific literature. See: <a href="http://www.budapestopenaccessinitiative.org/read">http://www.budapestopenaccessinitiative.org/read</a>.</p>
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For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/comments-on-the-report-of-the-committee-on-digital-payments-dec-2016'>http://editors.cis-india.org/internet-governance/blog/comments-on-the-report-of-the-committee-on-digital-payments-dec-2016</a>
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No publisherSumandro Chattapadhyay and Amber SinhaUIDDigital IDBig DataDigital EconomyDigital AccessPrivacyDigital SecurityData RevolutionDigital PaymentInternet GovernanceDigital IndiaData ProtectionDemonetisationHomepageFeaturedAadhaar2017-01-12T12:32:22ZBlog Entry