Centre for Internet and Society

CIS Response to Draft E-Commerce Policy

amber — 2019-04-26T06:40:34Z

CIS is grateful for the opportunity to submit comments to the Department of Industrial Policy and Promotion on the draft national e-commerce policy. This response was authored by Amber Sinha, Arindrajit Basu, Elonnai Hickok and Vipul Kharbanda.

Access our response to the draft policy here: Download (PDF)

The E-Commerce Policy is a much needed and timely document that seeks to enable the growth of India's digital ecosystem. Crucially, it backs up India's stance at the WTO, which has been a robust pushback against digital trade policies that would benefit the developed world at the cost of emerging economies. However, in order to ensure that the benefits of the digital economy are truly shared, focus must not only be on the sellers but also on the consumers, which automatically brings in individual rights into the question. No right is absolute but there needs to be a fair trade-off between the mercantilist aspirations of a burgeoning digital economy and the civil and political rights of the individuals who are spurring the economy on. We also appreciate the recognition that the regulation of e-commerce must be an inter-disciplinary effort and the assertion of the roles of various other departments and ministries. However, we also caution against over-reach and encroaching into policy domains that fall within the mandate of existing laws.

For more details visit http://editors.cis-india.org/internet-governance/blog/cis-response-to-draft-e-commerce-policy

Can the Judiciary Upturn the Lok Sabha Speaker’s Decision on Aadhaar?

amber — 2017-02-27T15:44:56Z

When ruling on the petition filed by Jairam Ramesh challenging passing the Aadhaar Act as a money Bill, the court has differing precedents to look at.

The article was published in the Wire on February 21, 2017.

In an earlier article, I had argued that the characterisation of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, as a money Bill by Sumitra Mahajan, speaker of the Lok Sabha, was erroneous. Specifically, I had argued that upon perusal of Article 110 (1) of the constitution, the Aadhaar Act does not satisfy the conditions required of a money Bill. For a legislation to be classified as a money Bill, it must comprise of ‘only’ provisions dealing with the following matters: (a) imposition, regulation and abolition of any tax, (b) borrowing or other financial obligations of the government of India, (c) custody, withdrawal from or payment into the Consolidated Fund of India (CFI) or Contingent Fund of India, (d) appropriation of money out of CFI, (e) expenditure charged on the CFI or (f) receipt or custody or audit of money into CFI or public account of India; or (g) any matter incidental to any of the matters specified in sub-clauses (a) to (f).

Article 110 is modelled on Section 1(2) of the UK’s Parliament Act, 1911, which also defines money Bills as those only dealing with certain enumerated matters. The use of the word ‘only’ was brought up by Ghanshyam Singh Gupta during the constituent assembly debates. He pointed out that the use of the word ‘only’ limits the scope money Bills to only those legislations which did not deal with other matters. His amendment to delete the word ‘only’ was rejected, clearly establishing the intent of the framers of the constitution to keep the ambit of money Bills extremely narrow. G.V. Mavalankar, the first speaker of Lok Sabha, had stated that the word ‘only’ must not be construed so as to give an overly restrictive meaning. For instance, a Bill which deals with taxation could have provisions which deal with the administration of the tax. The finance minister, Arun Jaitley, referred to these words by Mavalankar, justifying the classification of the Aadhaar Act as a money Bill.

While the Aadhaar Bill does makes references to benefits, subsidies and services funded by the CFI, even a cursory reading of the Bill reveals its main objectives as creating a right to obtain a unique identification number and providing for a statutory apparatus to regulate the entire process. Any reasonable reading of the legislation would be hard pressed to view all provisions in the Aadhaar Act, aside from the one creating a charge on the CFI, as merely administrative provisions incidental to the creation such charge. The mere fact of establishing the Aadhaar number as the identification mechanism for benefits and subsidies funded by the CFI does not give it the character of a money Bill. The Bill merely speaks of facilitating access to unspecified subsidies and benefits rather than their creation and provision being the primary object of the legislation. Erskine May’s seminal textbook, Parliamentary Practice, is instructive in this respect and makes it clear that a legislation which simply makes a charge on the consolidated fund does not becomes a money Bill if otherwise its character is not that of one. Further, the subordinate regulations notified under the Aadhaar Act deal almost entirely with matters to do with enrolment, updation, authentication of the Aadhaar number and related matters such as data security regulations and sharing of information collected, rather than the provision of benefits or subsidies or disbursal of funds otherwise from the CFI.

However, in the context of the petition filed by former Union minister Jairam Ramesh challenging the passage of the law on Aadhaar as a money Bill, the more important question is whether the judiciary has a right to question the speaker’s decision in such a matter. If not, any other questions about whether the legislation is a money Bill will remain merely academic in nature.

Irregularity vs illegality

Article 110 (3) clearly states that with regard to the question whether a legislation is a money Bill or not, the decision of the speaker is final and binding. The question is whether such a clause completely excludes any judicial review. Further, Article 122 prohibits the courts from questioning the validity of any proceedings in parliament on the ground of any alleged irregularity of procedure.

During the arguments in the court, the attorney general questioned the locus standi of Ramesh. The petition has been made under Article 32 of the constitution and the government argued that no fundamental rights of Ramesh were violated. However, the court has asked Ramesh to make his submission and adjourned the hearing to July. The petition by Ramesh would hinge largely on the powers of the judiciary to question the decision of the speaker of the Lok Sabha.

The powers of privilege that parliamentarians enjoy are integral to the principle of separation of powers. The rationale behind parliamentary privilege is to prevent interference in the lawmakers’ powers to perform essential functions. The ability to speak and vote inside the legislature without the fear of punishment is certainly essential to the role of a lawmaker. However, the extent of this protection lies at the centre of this discussion. During the constituent assembly debates, H.V. Kamath and others had argued for a schedule to exhaustively codify the existing privileges. However, B.R. Ambedkar pointed to the difficulty of doing so and parliamentary privilege on the lines of the British parliamentary practice was retained in the constitution. In the last few decades, a judicial position has emerged that courts could exercise a limited degree of scrutiny over privileges, as they are primarily responsible for interpreting the constitution.

In the matter of Raja Ram Pal vs The Hon’ble Speaker, Lok Sabha, it had been clarified that proceedings of the legislature were immune from questioning by courts in the case of procedural irregularity but not in the case of illegality. In this case, the Supreme Court while dealing with Article 122 stated that it does not oust review by the judiciary in cases of “gross illegality, irrationality, violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.”

In 1968, the speaker of the Punjab legislative assembly adjourned the proceedings for a period of two months following rowdy behaviour. Subsequently, an ordinance preventing such a suspension was promulgated and the legislature was summoned by the governor to consider some expedient financial matters. The speaker disagreed with the decision and after some confusion, the deputy speaker passed a few Bills as money Bills. While looking into the question of what was protected from judicial review, the court stated that the protection did not extend to breaches of mandatory provisions of the constitution, only to directory provisions. By that logic, if Article 110 (1) is seen as a mandatory provision, a breach of its provisions could lead to an interpretation that the Supreme Court may well question an erroneous decision by the speaker of the Lok Sabha to certify a legislation as a money Bill. The use of the word “shall” in Article 110 (1), the nature and design of the provision, its overriding impact on the other constitutional provisions granting the Rajya Sabha powers are ample evidence of its mandatory nature. Based on the above, Anup Surendranath has argued that the passage of the Aadhaar Act as a money Bill when it does not satisfy the constitutional conditions for it does amount to a gross illegality.

The judicial precedent in Mohd. Saeed Siddiqui vs State of Uttar Pradesh where the matter of the court’s power to question the decision of a speaker was considered, though, leans in the other direction. In 2012, the Uttar Pradesh Lokayukta and Up-Lokayuktas (Amendment) Act, 2012 was passed as money Bill by the Uttar Pradesh state legislature. Subsequently, a writ petition was filed challenging its constitutional validity. A three-judge bench of the Supreme Court looked into the application of Article 212. It is the provision corresponding to Article 122, dealing with the power of the courts to inquire into the proceedings of the state legislature. The court held that Article 212 makes “it clear that the finality of the decision of the Speaker and the proceedings of the State Legislature being important privilege of the State Legislature, viz., freedom of speech, debate and proceedings are not to be inquired by the Courts.” Importantly, ‘proceedings of the legislature’ were deemed to include within its scope everything done in transacting parliamentary business, including the passage of the Bill. While the court did acknowledge the limitations of parliamentary privilege as established in the Raja Ram Pal case, it did not adequately take into account the reasoning in it.

The Aadhaar Act is a legislation which makes it mandatory of all residents to enrol for a biometric identification system in order to avail certain subsidies, benefits and services. It has huge potential risks for individual privacy and national security and has been the subject of an extremely high profile Public Interest Litigation. Its passage as a money Bill, without any oversight from the Rajya Sabha and an opportunity for substantial debate and discussion, is a fraud on the Constitution. Whether or not the court chooses to see it that way remains to be seen.

For more details visit http://editors.cis-india.org/internet-governance/blog/the-wire-amber-sinha-february-21-2017-can-the-judiciary-upturn-the-lok-sabha-speakers-decision-on-aadhaar

Call for Design Interns

amber — 2019-06-12T06:16:13Z

CIS is seeking graphic design interns to create communication material (information and data visualizations, publication layouts, presentations, etc.) for our projects. The intern will assist our researchers in presenting their research in accessible and easy-to-understand forms, as well as design social media collaterals. They will be working with a multi-disciplinary team across two cities, and be supervised by a designer.

Who can apply?

Students of design or recent design graduates, who are available to work full-time for at least a month, and have experience in editorial design and creating data visualizations. Others who can demonstrate similar skills and aptitude are also welcome to apply. Applicants with an interest in digital technology research would be preferred.

Our work is strengthened by the diversity in background, culture, experience, religion, caste, sexual orientation, gender, gender identity, race, ethnicity, age and disability. We welcome applications from candidates belonging to marginalised communities.

Skills

Comfortable working with Adobe InDesign, Illustrator, and Photoshop,
Comfortable working with Google Docs and Slides, and
Knowledge of HTML/CSS will be preferred.

Duration of the internship

1 – 2 months

Location

Bangalore or New Delhi

Remuneration

A modest stipend will be paid

How to apply?

To apply, please send –

Resumé,
Relevant work samples (less than 5MB), and
Link to online portfolio, if any.

Applications should be sent to Saumyaa Naidu (saumyaa [at] cis-india.org) and Karan Saini (karan [at] cis-india.org) by June 28, 2019.

Organisational policies

All interns working at CIS must read and abide by CIS' organisational policies.

For more details visit http://editors.cis-india.org/jobs/call-for-design-interns-201906

Breeding misinformation in virtual space

amber — 2017-12-08T02:24:29Z

A well-informed citizenry and institutions that provide good information are fundamental to a functional democracy.

The phenomenon of fake news has rece-ived significant sc-holarly and media attention over the last few years. In March, Sir Tim Berners Lee, inventor of the World Wide Web, has called for a crackdown on fake news, stating in an open letter that “misinformation, or fake news, which is surprising, shocking, or designed to appeal to our biases, can spread like wildfire.”

Gartner, which annually predicts what the next year in technology will look like, highlighted ‘increased fake news’ as one of its predictions.

The report states that by 2022, “majority of individuals in mature economies will consume more false information than true information. Due to its wide popularity and reach, social media has come to play a central role in the fake news debate.”

Researchers have suggested that rumours penetrate deeper within a social network than outside, indicating the susceptibility of this medium. Social networks such as Facebook and communities on messaging services such as Whats-App groups provide the perfect environment for spreading rumours. Information received via friends tends to be trusted, and online networks allow in-dividuals to transmit information to many friends at once.

In order to understand the recent phenomenon of fake news, it is important to recognise that the problem of misinformation and propaganda has existed for a long time. The historical examples of fake news go back centuries where, prior to his coronation as Roman Emperor, Octavian ran a disinformation campaign against Marcus Antonius to turn the Roman populace against him.

The advent of the printing press in the 15th century led to widespread publication; however, there were no standards of verification and journalistic ethics. Andrew Pettigrew wri-tes in his The Invention of News, that news reporting in the 16th and 17th centuries was full of portents about “comets, celestial apparitions, freaks of nature and natural disasters.”

In India, the immediate cause for the 1857 War of Indepen-dence was rumours that the bones of cows and pigs were mixed with flour and used to grease the cartridges used by the sepoys.

Leading up to the Second World War, the radio emerged as a strong medium for dissemination of disinformation, used by the Nazis and other Axis powers. More recently, the milk miracle in the mid-1990s consisting of stories of the idol of Ganesha drinking milk was a popular fake news phenomenon. In 2008, rumours about the popular snack, Kurkure, being made out of plastic became so widespread that Pepsi, its holding company, had to publicly rebut them.

A quick survey by us at the Centre of Internet and Society, for a forthcoming report, of the different kinds of misinformation being circulated in India, suggested four different kinds of fake news.

The first is a case of manufactured primary content. This includes instances where the entire premise on which an argument is based is patently false. In August 2017, a leading TV channel reported that electricity had been cut to the Jama Masjid in New Delhi for non-payment of bills. This was based on a false report carried by a news portal.

The second kind of fake news involves manipulation or editing of primary content so as to misrepresent it as something else. This form of fake news is often seen with respect to multimedia content such as images, pictures, audios and videos. These two forms of fake news tend to originate outside traditional media such as newspapers and television channels, and can be often sourced back to social media and WhatsApp forwards.

However, we see such unverified stories being picked up by traditional media. Further, there are instances where genuine content such as text and pictures are shared with fallacious contexts and descriptions. Earlier this year, several dailies pointed out that an image shared by the ministry of home affairs, purportedly of the floodlit India-Pakistan border, was actually an image of the Spain-Morocco border. In this case, the image was not doctored but the accompanying information was false.

Third, more complicated cases of misinformation involve the primary content itself not being false or manipulated, but the facts when they are reported may be quoted out of context. Most examples of misinformation spread by mainstream media, which has more evolved systems of fact checking and verification, and editorial controls, would tend to fall under this.

Finally, there are instances of lack of diligence in fully understanding the issues before reporting. Such misrepresentations are often encountered while reporting in fields that require specialised knowledge, such as science and technology, law, finance etc. Such forms of misinformation, while not suggestive of malafide intent can still prove to be quite dangerous in shaping erroneous opinions.

While the widespread dissemination of fake news contributes greatly to its effectiveness, it also has a lot to do with the manner in which it is designed to pander to our cognitive biases. Directionally motivated reasoning prompts people confronted with political information to process it with an intention to reach a certain pre-decided conclusion, and not with the intention to assess it in a dispassionate manner. This further results in greater susceptibility to confirmation bias, disconfirmation bias and prior attitude effect.

Fake news is also linked to the idea of “naïve realism,” the belief people have that their perception of reality is the only accurate view, and those in disagreement are necessarily uninformed, irrational, or biased. This also explains why so much fake news simply does not engage with alternative points of view.

A well-informed citizenry and institutions that provide good information are fundamental to a functional democracy. The use of the digital medium for fast, unhindered and unchecked spread of information presents a fertile ground for those seeking to spread misinformation. How we respond to this issue will be vital for democratic societies in our immediate future. Fake news presents a complex regulatory challenge that requires the participation of different stakeholders such as the content disseminators, platforms, norm guardians which include institutional fact checkers, trade organisations, and “name-and-shaming” watchdogs, regulators and consumers.

For more details visit http://editors.cis-india.org/internet-governance/blog/asian-age-amber-sinha-december-3-2017-

Beyond Public Squares, Dumb Conduits, and Gatekeepers: The Need for a New Legal Metaphor for Social Media

amber — 2021-05-31T10:19:33Z

For more details visit http://editors.cis-india.org/internet-governance/files/beyond-public-squares-dumb-conduits-and-gatekeepers.pdf

Beyond Public Squares, Dumb Conduits, and Gatekeepers: The Need for a New Legal Metaphor for Social Media

amber — 2021-05-31T10:23:36Z

In the past few years, social networking sites have come to play a central role in intermediating the public’s access to and deliberation of information critical to a thriving democracy. In stark contrast to early utopian visions which imagined that the internet would create a more informed public, facilitate citizen-led engagement, and democratize media, what we see now is the growing association of social media platforms with political polarization and the entrenchment of racism, homophobia, and xenophobia.

There is a dire need to think of regulatory strategies that look beyond the ‘dumb conduit’ metaphors that justify safe harbor protection to social networking sites. Alongside, it is also important to critically analyze the outcomes of regulatory steps such that they do not adversely impact free speech and privacy. By surveying the potential analogies of company towns, common carriers, and editorial functions, this essay provides a blueprint for how we may envision differentiated intermediary liability rules to govern social networking sites in a responsive manner.

Introduction

Only months after Donald Trump’s 2016 election victory — a feat mired in controversy over alleged Russian interference using social media, specifically Facebook — Mark Zuckerberg remarked that his company has grown to serve a role more akin to government, rather than a corporation. Zuckerberg argued that Facebook was responsible for creating guidelines and rules that governed the exchange of ideas of over two billion people online. Another way to look at the same argument is to acknowledge that, today, a quarter of the world’s population (and of India) are subject to the laws of Facebook’s terms and conditions and privacy policies, and public discourse around the globe is shaped within the constraints and conditions they create. Social media platforms, like Facebook, wield hitherto unimaginable power to catalyze public opinions, causing a particular narrative to gather steam — that Big Tech can pose an existential threat to democracy.

This, of course, is in absolute contrast to the early utopian visions which imagined that the internet would create a more informed public, facilitate citizen-led engagement, and democratize media. Instead, what we see now is the growing association of social media platforms with political polarization and the entrenchment of racism, homophobia, and xenophobia. The regulation of social networking sites has emerged as one of the most important and complex policy problems of this time. In this essay, I will explore the inefficacy of the existing regulatory framework, and provide a blueprint for how to think of appropriate regulatory metaphors to revisit it.

Click on to read the article published by IT for Change
Download the PDF (34,328 Kb) to read the full article, pages 126 - 138.

For more details visit http://editors.cis-india.org/internet-governance/blog/it-for-change-amber-sinha-beyond-public-squares-dumb-conduits-and-gatekeepers

Announcement of a Three-Region Research Alliance on the Appropriate Use of Digital Identity

amber — 2019-05-13T09:06:23Z

Omidyar Network has recently announced its decision to invest in establishment of a three-region research alliance — to be co-led by the Institute for Technology & Society (ITS), Brazil, the Centre for Intellectual Property and Information Technology Law (CIPIT) , Kenya, and the CIS, India — on the Appropriate Use of Digital Identity. As part of this Alliance, we at the CIS will look at the policy objectives of digital identity projects, how technological policy choices can be thought through to meet the objectives, and how legitimate uses of a digital identity framework may be evaluated.

As governments across the globe are implementing new, digital foundational identification systems or modernizing existing ID programs, there is a dire need for greater research and discussion about appropriate design choices for a digital identity framework. There is significant momentum on digital ID, especially after the adoption of UN Sustainable Development Goal 16.9, which calls for legal identity for all by 2030. Given the importance of this subject, its implications for both the development agenda as well its impact on civil, social and economic rights, there is a need for more focused research that can enable policymakers to take better decisions, guide civil society in different jurisdictions to comment on and raise questions about digital identity schemes, and provide actionable material to the industry to create identity solutions that are privacy enhancing and inclusive.

Excerpt from the blog post by Subhashish Bhadra announcing this new research alliance

...In the absence of any widely-accepted thinking on this issue, we run the risk of digital identity systems suffering from mission creep, that is being made mandatory or being used for an ever-expanding set of services. We believe this creates several risks. First, people may be excluded from services if they do not have a digital identity or because it malfunctions. Second, this approach creates a wider digital footprint that can be used to create a profile of an individual, sometimes without consent. This can increase privacy risk. Third, this approach increases the power of institutions versus individuals and can be used as rationale to intentionally deny services, especially to vulnerable or persecuted groups.

Three exceptional research groups have undertaken the effort of answering this complex and important question. Over the next six months, these think tanks will conduct independent research, as well as involve experts from across the globe. Based in South America, Africa, and Asia, these institutions represent the collective wisdom and experiences of three very distinct geographies in emerging markets. While drawing on their local context, this research effort is globally oriented. The think tanks will create a set of recommendations and tools that can be used by stakeholders to engage with digital identity systems in any part of the world...

This research will use a collaborative and iterative process. The researchers will put out some ideas every few weeks, with the objective of seeking thoughts, questions, and feedback from various stakeholders. They will participate in several digital rights and identity events across the globe over the next several months. They will also organize webinars to seek input from and present their interim findings to interested communities from across the globe. Each of these provide an opportunity for you to provide your thoughts and help this research program provide an independent, rigorous, transparent, and holistic answer to the question of when it’s appropriate for digital identity to be used. We need a diversity of viewpoints and collaborative dissent to help solve the most pressing issues of our times.

For more details visit http://editors.cis-india.org/internet-governance/blog/appropriate-use-of-digital-identity-alliance-announcement

Analysis of Key Provisions of the Aadhaar Act Regulations

amber — 2017-04-03T14:05:01Z

In exercise of their powers under of the powers conferred by Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016, (Aadhaar Act) the UIDAI has come out with a set of five regulations in late 2016 last year. In this policy brief, we look at the five regulations, their key provisions and highlight point out the unresolved, issues, unaddressed, and created issues as result of these regulations.

This blog post was edited by Elonnai Hickok

Introduction

At the outset it is important to note that a concerning feature of these regulations is that they intend to govern the processes of a body which has been in existence for over six years, and has engaged in all the activities sought to be governed by these policies at a massive scale, considering the claims of over one billion Aadhaar number holders. However, the regulation do not acknowledge, let alone address past processes, practices, enrollments, authentications, use of technology etc. this fact, and there are no provisions that effectively address the past operations of the UIDAI. Below is an analysis of the five regulations issued thus far by the UIDAI.

Unique Identification Authority of India (Transactions of Business at Meetings of the Authority) Regulations^{^[1]}

These regulations framed under clause (h) of sub-section (2) of section 54 read with sub-section (1) of section 19 of the Aadhaar Act, deal with the meetings of the UIDAI, the process following up to each meeting, and the manner in which all meetings are to be conducted.

Provision: Sub-Regulation 3.

Meetings of the Authority– (1) There shall be no less than three meetings of the Authority in a financial year on such dates and at such places as the Chairperson may direct and the interval between any two meetings shall not in any case, be longer than five months

Observations:

The number of times that UIDAI would meet in a year is far too less, taking in account the significance of the responsibilities of UIDAI as the sole body for policy making for all issues related to Aadhaar. In contrast, the Telecom Regulatory Authority of India is required to meet at least once a month. Other bodies such as SEBI and IRDAI are also required to meet at least four times^{^[2]} and six times^{^[3]} in a year respectively.

Provision: Sub-Regulation 8 (5)

Decisions taken at every meeting of the Authority shall be published on the website of Authority unless the Chairperson determines otherwise on grounds of ensuring confidentiality.

Observations:

The Chairperson has the power to determine withholding publication of the decisions of the meeting on the broad grounds of ‘confidentiality’. Given the fact that the decisions taken by UIDAI as a public body can have very real implications for the rights of residents, the ground of confidentiality is not sufficient to warrant withholding publication. It is curious that instead of referring to the clearly defined exceptions laid down in other similar provisions such as the exceptions in Section 8 of the Right to Information Act, 2005, the rules merely refer to vague and undefined criteria of ‘confidentiality’.

Provision: Sub-Regulation 14 (4)

Members of the Authority and invitees shall sign an initial Declaration at the first meeting of the Authority for maintaining the confidentiality of the business transacted at meetings of the Authority in Schedule II.

Observations:

The above provision, combined with the fact that there is no provision regarding publication of the minutes of the meetings of UIDAI raise serious questions about the transparency of its functioning.

Unique Identification Authority of India (Enrolment and Update) Regulations^{^[4]}

These regulations, framed under sub-section (1), and sub-clauses (a), (b), (d,) (e), (j), (k), (l), (n), (r), (s), and (v) of sub-section (2), of Section 54 of the Aadhaar Act deals with the enrolment process, the generation of an Aadhaar number, updation of information and governs the conduct of enrolment agencies and associated third parties.

Provisions:

Sub-Regulation 8 (2), (3) and (4)

The standard enrolment/update software shall have the security features as may be specified by the Authority for this purpose.

All equipment used in enrolment, such as computers, printers, biometric devices and other accessories shall be as per the specifications issued by the Authority for this purpose.

The biometric devices used for enrolment shall meet the specifications, and shall be certified as per the procedure, as may be specified by the Authority for this purpose.

Sub-Regulation 3 (2)

The standards for collecting the biometric information shall be as specified by the Authority for this purpose.

Sub-Regulation 4 (5)

The standards of the above demographic information shall be as may be specified by the Authority for this purpose.

Sub-Regulation 6 (2)

For residents who are unable to provide any biometric information contemplated by these regulations, the Authority shall provide for handling of such exceptions in the enrolment and update software, and such enrolment shall be carried out as per the procedure as may be specified by the Authority for this purpose.

Sub-Regulation 14 (2)

In case of rejection due to duplicate enrolment, resident may be informed about the enrolment against which his Aadhaar number has been generated in the manner as may be specified by the Authority.

Observations:

Though in February 2017, the UIDAI published technical specifications for registered devices^{^[5]}, the regulations leave unaddressed issues such as lack of appropriately defined security safeguards in the Aadhaar. There is a general trend of continued deferrals in the regulations by stating that matters would be specified later on important aspects such as rejection of applications, uploading of the enrolment packet to the CIDR, the procedure for enrolling residents with biometric exceptions, the procedure for informing residents about acceptance/rejection of enrolment application, specifying the convenience fee for updation of residents’ information, the procedure for authenticating individuals across services etc.c. There is a clear failure to exercise the mandate delegated to UIDAI, leaving key matters to determined at a future unspecified date. The delay and ambiguity around when regulations will be defined is all the more problematic in light of the fact that the project has been implemented since 2010 and the Aadhaar number is now mandatory for availing a number of services.

Further it is important to note that a number of policies put out by the UIDAI predate these regulations, on which the regulations are completely silent, thus neither endorsing previous policies nor suggesting that they may be revisited. Further, the regulations choose to not engage with the question of operation of the Aadhaar project, enrolment and storage of data etc prior to the notification of these regulations, or the policies which these regulations may regularise. For instance, the regulations do not specify any measures to deal with issues arising out of enrolment devices used prior to the development of the February 2017 specifications.

Provision: Sub-Regulation 32

The Authority shall set up a contact centre to act as a central point of contact for resolution of queries and grievances of residents, accessible to residents through toll free number(s) and/ or e-mail, as may be specified by the Authority for this purpose.

(2) The contact centre shall:

Provide a mechanism to log queries or grievances and provide residents with a unique reference number for further tracking till closure of the matter;
Provide regional language support to the extent possible;
Ensure safety of any information received from residents in relation to their identity information;
Comply with the procedures and processes as may be specified by the Authority for this purpose.

(3) Residents may also raise grievances by visiting the regional offices of the Authority or through any other officers or channels as may be specified by the Authority.

Observations:

While the setting up of a grievance redressal mechanism under the regulations is a welcome move, there is little clarity about the procedure to be followed, nor is a timeline for it specified. The chapter on grievance redressal is in fact one of the shortest chapters in the regulations. The only provision in this chapter deals with the setting up of a contact centre, a curious choice of term for what is supposed to be the primary quasi judicial grievance redressal body for the Aadhaar project. In line with the indifferent and insouciant terminology of ‘contact centre’, the chapter is restricted to the matters of the logging of queries and grievances by the contact centre, and does not address the matter of procedure or timelines, and even the substantive provisions about the nature of redress available. Furthermore, the obligation on the contact centre to protect information received is limited to ‘ensuring safety’ an ambiguous standard that does not speak to any other standards in Indian law.

Aadhaar (Authentication) Regulations, 2016^{^[6]}

These regulations, framed under sub-section (1), and sub-clauses (f) and (w) of sub-section (2) of Section 54 of the Aadhaar Act deals with the authentication framework for Aadhaar numbers, the governance of authentication agencies and the procedure for collection, storage of authentication data and records.

Provisions:

Sub-Regulation 5 (1)

At the time of authentication, a requesting entity shall inform the Aadhaar number holder of the following details:—

(a) the nature of information that will be shared by the Authority upon authentication;

(b) the uses to which the information received during authentication may be put; and

Sub-Regulation 6 (2)

A requesting entity shall obtain the consent referred to in sub-regulation (1) above in physical or preferably in electronic form and maintain logs or records of the consent obtained in the manner and form as may be specified by the Authority for this purpose.

Observations:

Sub-regulation 5 mentions that at the time of authentication, requesting entities shall inform the Aadhaar number holder of alternatives to submission of identity information for the purpose of authentication. Similarly, sub-regulation 6 mentions that requesting entity shall obtain the consent of the Aadhaar number holder for the authentication. However, in neither of the above circumstances do the regulations specify the clearly defined options that must be made available to the Aadhaar number holder in case they do not wish submit identity information, nor do the regulations specify the procedure to be followed in case the Aadhaar number holder does not provide consent.

Most significantly, this provision does little by way of allaying the fears raised by the language in Section 8 (4) of the Aadhaar Act which states that UIDAI “shall respond to an authentication query with a positive, negative or any other appropriate response sharing such identity information.” This section gives a very wide discretion to UIDAI to share personal identity information with third parties, and the regulations do not temper or qualify this power in any way.

Sub-Regulation 11 (1) and (4)

The Authority may enable an Aadhaar number holder to permanently lock his biometrics and temporarily unlock it when needed for biometric authentication.

The Authority may make provisions for Aadhaar number holders to remove such permanent locks at any point in a secure manner.

Observations:

A welcome provision in the regulation is that of biometric locking which allows Aadhaar number holders to permanently lock his biometrics and temporarily unlock it only when needed for biometric authentication. However, in the same breath, the regulation also provides for the UIDAI to make provisions to remove such locking without any specified grounds for doing so.

Provision: Sub-Regulation 18 (2), (3) and (4)

The logs of authentication transactions shall be maintained by the requesting entity for a period of 2 (two) years, during which period an Aadhaar number holder shall have the right to access such logs, in accordance with the procedure as may be specified.

Upon expiry of the period specified in sub-regulation (2), the logs shall be archived for a period of five years or the number of years as required by the laws or regulations governing the entity, whichever is later, and upon expiry of the said period, the logs shall be deleted except those records required to be retained by a court or required to be retained for any pending disputes.

The requesting entity shall not share the authentication logs with any person other than the concerned Aadhaar number holder upon his request or for grievance redressal and resolution of disputes or with the Authority for audit purposes. The authentication logs shall not be used for any purpose other than stated in this sub-regulation.

Observations:

While it is specified that the authentication logs collected by the requesting entities shall not be shared with any person other than the concerned Aadhaar number holder upon their request or for grievance redressal and resolution of disputes or with the Authority for audit purposes, and that the authentication logs may not be used for any other purpose, the maintenance of the logs for a period of seven years seems excessive. Similarly, the UIDAI is also supposed to store Authentication transaction data for over five years. This is in violation of the widely recognized data minimisation principles which seeks that data collectors and data processors delete personal data records when the purpose for which it has been collected if fulfilled. While retention of data for audit and dispute-resolution purpose is legitimate, the lack of specification of security standards and the overall lack of transparency and inadequate grievance redressal mechanism greatly exacerbate the risks associated with data retention.

Aadhaar (Sharing of Information) Regulations, 2016 and Aadhaar (Data security) Regulations, 2016^{^[7]}

Framed under the powers conferred by sub-section (1), and sub-clause (o) of sub-section (2), of Section 54 read with sub-clause (k) of sub-section (2) of Section 23, and sub-sections

(2) and (4) of Section 29, of the Aadhaar Act, the Sharing of Information regulations look at the restrictions on sharing of identity information collected by the UIDAI and requesting entities. The Data Security regulation, framed under powers conferred by clause (p) of subsection (2) of section 54 of the Aadhaar Act, looks at security obligations of all service providers engaged by the UIDAI.

Provision: Sub-Regulation 6 (1)

All agencies, consultants, advisors and other service providers engaged by the Authority, and ecosystem partners such as registrars, requesting entities, Authentication User Agencies and Authentication Service Agencies shall get their operations audited by an information systems auditor certified by a recognised body under the Information Technology Act, 2000 and furnish certified audit reports to the Authority, upon request or at time periods specified by the Authority.

Observations:

The regulation states that audits shall be conducted by an information systems auditor certified by a recognised body under the Information Technology Act, 2000. However, there is no such certifying body under the Information Technology Act. This suggests a lack of diligence in framing the rules, and will inevitably to lead to inordinate delays, or alternately, a lack of a clear procedure in the appointment of an auditor. Further, instead of prescribing a regular and proactive process of audits, the regulation only limits audits to when requested or as deemed appropriate by UIDAI. This is another, in line of many provisions, whose implication is power being concentrated in the hands of UIDAI, with little scope for accountability and transparency.

Conclusion

In conclusion, it must be stated that the regulations promulgated by the UIDAI leave a lot to be desired. Some of the most important issues raised against the Aadhaar Act, which were delegated to the UIDAI’s rule making powers have not been addressed at all. Some of the most important issues such as data security policies, right to access records of Aadhaar number holders, procedure to be followed by the grievance redressal bodies, uploading of the enrolment packet to the CIDR, procedure for enrolling residents with biometric exceptions, procedure for informing residents about acceptance/rejection of enrolment application have left unaddressed and ‘may be specified’ at a later data. These failures leave a gaping hole especially in light of the absence of a comprehensive data protection legislation in India, as well the speed and haste with the enrolment and seeding has been done by the UIDAI, and the number of services, both private and public, which are using or planning to use the Aadhaar number and the authentication process as a primary identifier for residents.

^{^[1]} Available at https://uidai.gov.in/legal-framework/acts/regulations.html

^{^[2]} https://www.irda.gov.in/ADMINCMS/cms/frmGeneral_Layout.aspx?page=PageNo62&flag=1

^{^[3]} http://www.sebi.gov.in/acts/boardregu.html

^{^[4]} Available at https://uidai.gov.in/legal-framework/acts/regulations.html

^{^[5]} Available at: https://uidai.gov.in/images/resource/aadhaar_registered_devices_2_0_09112016.pdf

^{^[6]} Available at https://uidai.gov.in/legal-framework/acts/regulations.html

^{^[7]} Available at https://uidai.gov.in/legal-framework/acts/regulations.html

For more details visit http://editors.cis-india.org/internet-governance/blog/analysis-of-key-provisions-of-aadhaar-act-regulations

Amber Sinha and Pooja Saxena - The Fundamental Right to Privacy: A Visual Guide

amber — 2018-04-18T05:44:23Z

For more details visit http://editors.cis-india.org/internet-governance/files/amber-sinha-and-pooja-saxena-the-fundamental-right-to-privacy-a-visual-guide

Aadhar: Privacy is not a unidimensional concept

amber — 2017-08-23T01:50:19Z

Right to privacy is important not only for our negotiations with the information age but also to counter the transgressions of a welfare state. A robust right to privacy is essential for all Indian citizens to defend their individual autonomy in the face of invasive state actions purportedly for the public good.

The article was published in the Economic Times on July 23, 2017.

The ruling of this nine-judge bench will have far-reaching impact on the extent and scope of rights available to us all. In a disappointing case of judicial evasion by the apex court, it has taken over 600 days since a reference order was passed in August 11, 2015, for this bench to be constituted. Over two days of arguments, the counsels for the petitioners have presented before the court why the right to privacy, despite not finding a mention in the Constitution of India, is a fundamental right essential to a person’s dignity and liberty, and must be read into not one but multiple articles of the Constitution. The government will make its arguments in the coming week.

One must wonder why we are debating the contours of the right to privacy, which 40 years of jurisprudence had lulled us into believing we already had. The answer to that can be found in a series of hearings in the Aadhaar case that began in 2012. Justice KS Puttaswamy, a former Karnataka High Court judge, filed a petition before the Supreme Court, questioning the validity of the Aadhaar project due its lack of legislative basis (since then the Aadhaar Act was passed in 2016) and its transgressions on our fundamental rights. Over time, a number of other petitions also made their way to the apex court, challenging different aspects of the Aadhaar project. Since then, five different interim orders by the Supreme Court have stated that no person should suffer because they do not have an Aadhaar number. Aadhaar, according to the court, could not be made mandatory to avail benefits and services from government schemes. Further, the court has limited the use of Aadhaar to specific schemes: LPG, PDS, MGNREGA, National Social Assistance Programme, the Pradhan Mantri Jan Dhan Yojna and EPFO.

The real spanner in the works in the progress of this case was the stand taken by Mukul Rohatgi, then attorney general of India who, in a hearing before the court in July 2015, stated that there is no constitutionally guaranteed right to privacy. His reliance was on two Supreme Court judgments in MP Sharma v Satish Chandra (1954) and Kharak Singh v State of Uttar Pradesh (1962): both cases, decided by eight- and six-judge benches respectively, denied the existence of a constitutional right to privacy. As the subsequent judgments which upheld the right to privacy were by smaller benches, Rohatgi claimed that MP Sharma and Kharak Singh still prevailed over them, until they were overruled by a larger bench.

The reference to a larger bench has since delayed the entire matter, even as a number of government schemes have made Aadhaar mandatory. This reading of privacy as a unidimensional concept by the courts is, with due respect, erroneous. Privacy, as a concept, includes within its scope, spatial, familial, informational and decisional aspects. We all have a legitimate expectation of privacy in our private spaces, such as our homes, and in our personal relationships. Similarly, we must be able to exercise some control over how personal data, like our financial information, are disseminated. Most importantly, privacy gives us the space to make autonomous choices and decisions without external interference. All these dimensions of privacy must stand as distinct rights. In MP Sharma, the court rejected a certain aspect of the right of privacy by refusing to acknowledge a right against search and seizure. This, in no way prevented the court, even in the form of a smaller bench, from ruling on any other aspects of privacy, including those that are relevant to the Aadhaar case.

The limited referral to this bench means that the court will have to rule on the status of privacy and its possible limitations in isolation, without even going into the details of the Aadhaar case (based on the nature of protection that this bench accords to privacy, the petitioners and defendants in the Aadhaar case will have to argue afresh on whether the project does impede on this most fundamental right). There are no facts of the case to ground the legal principles in, and defining the contours of a right can be a difficult exercise. The court must be wary of how any limits they put on the right may be used in future. Equally, it is important to articulate that any limitations on the right to privacy due to competing interests such as national security and public interest must be imposed only when necessary and always be proportionate.

It will not be enough for the court to merely state that we have a constitutional right to privacy. They would be well advised to cut through the muddle of existing privacy jurisprudence, and unequivocally establish the various facets of the right. Without that, we may not be able to withstand the modern dangers of surveillance, denial of bodily integrity and self-determination through forcible collection of information. The nine judges, in their collective wisdom, must not only ensure that we have a right to privacy, but also clearly articulate a robust reading of this right capable of withstanding the growing interferences with our autonomy.

For more details visit http://editors.cis-india.org/internet-governance/blog/economic-times-july-23-2017-amber-sinha-aadhar-privacy-is-not-a-unidimensional-concept

Aadhaar Bill fails to incorporate suggestions by the Standing Committee

amber — 2016-03-10T15:58:57Z

In 2011, a standing committee report led by Yashwant Sinha had been scathing in its indictments of the Aadhaar BIll introduced by the UPA government. Five years later, the NDA government has introduced a new bill which is a rehash of the same. I look at the concerns raised by the committee report, none of which have been addressed by the new bill.

The article was published by The Wire on March 10, 2016

In December, 2010, the UPA Government introduced the National Identification Authority of India Bill, 2010 in the Parliament. It was subsequently referred to a Standing Committee on Finance by the Speaker of Lok Sabha under Rule 331E of the the Rules of Procedure and Conduct of Business in Lok Sabha. This Committee, headed by BJP leader Yashwant Sinha took evidence from the Minister of Planning and the UIDAI from the government, as well as seeking the view of parties such as the National Human Rights Commission, Indian Banks Association and researchers like Dr Reetika Khera and Dr. Usha Ramanathan. In 2011, having heard from various parties and considering the concerns and apprehensions about the UID scheme, the Committee deemed the bill unacceptable and suggested a re-consideration of the the UID scheme as well as the draft legislation.

The Aadhaar programme has so far been implemented under the Unique Identification Authority of India, a Central Government agency created through an executive order. This programme has been shrouded in controversy over issues of privacy and security resulting in a Public Interest Litigation filed by Judge Puttaswamy in the Supreme Court. While the BJP had criticised the project as well as the draft legislation when it was in opposition, once it came to power and particularly, after it launched various welfare schemes like Digital India and Jan Dhan Yojna, it decided to continue with it and use Aadhaar as the identification technology for these projects. In the last year, there have been orders passed by the Supreme Court which prohibited making Aadhaar mandatory for availing services. One of the questions that the government has had to answer both inside and outside the court on the UID project is the lack of a legislative mandate for a project of this size. About five years later, the new BJP led government has come back with a rehash of the same old draft, and no comments made by the standing committee have been taken into account.

The Standing Committee on the old bill had taken great exception to the continued collection of data and issuance of Aadhaar numbers, while the Bill was pending in the Parliament. The report said that the implementation of the provisions of the Bill and continuing to incur expenditure from the exchequer was a circumvention of the prerogative powers of the Parliament. However, the project has continued without abeyance since its inception in 2009. I am listing below some of the issues that the Committee identified with the UID project and draft legislation, none of which have been addressed in current Bill.

One of the primary arguments made by proponents of Aadhaar has been that it would be useful in providing services to marginalized sections of the society who currently do not have identification cards and consequently, are not able to receive state sponsored services, benefits and subsidies. The report points that the project would not be able to achieve this as no statistical data on the marginalized sections of the society are being used to by UIDAI to provide coverage to them. The introducer systems which was supposed to provide Aadhaar numbers to those without any form of identification, has been used to enroll only 0.03% of the total number of people registered. Further, the Biometrics Standards Committee of UIDAI has itself acknowledged the issues caused due to a high number of manual laborers in India which would lead to sub-optimal fingerprint scans. A report by 4G Identity Solutions estimates that while in any population, approximately 5% of the people have unreadable fingerprints, in India it could lead to a failure to enroll up to 15% of the population. In this manner, the project could actually end up excluding more people.

The Report also pointed to a lack of cost-benefit analysis done before going ahead with scheme of this scale. It makes a reference to the report by the London School of Economics on the UK Identity Project which was shelved due to a) huge costs involved in the project, b) the complexity of the exercise and unavailability of reliable, safe and tested technology, c) risks to security and safety of registrants, d) security measures at a scale that will result in substantially higher implementation and operational costs and e) extreme dangers to rights of registrants and public interest. The Committee Report insisted that such global experiences remained relevant to the UID project and need to be considered. However, the new Bill has not been drafted with a view to address any of these issues.

The Committee comes down heavily on the irregularities in data collection by the UIDAI. They raise doubts about the ability of the Registrars to effectively verify the registrants and a lack of any security audit mechanisms that could identify issues in enrollment. Pointing to the news reports about irregularities in the process being followed by the Registrars appointed by the UIDAI, the Committee deems the MoUs signed between the UIDAI and the Registrars as toothless. The involvement of private parties has been under question already with many questions being raised over the lack of appropriate safeguards in the contracts with the private contractors.

Perhaps the most significant observation of the Committee was that any scheme that facilitates creation of such a massive database of personal information of the people of the country and its linkage with other databases should be preceded by a comprehensive data protection law. By stating this, the Committee has acknowledged that in the absence of a privacy law which governs the collection, use and storage of the personal data, the UID project will lead to abuse, surveillance and profiling of individuals. It makes a reference to the Privacy Bill which is still at only the draft stage. The current data protection framework in the Section 43A rules under the Information Technology Act, 2000 are woefully inadequate and far too limited in their scope. While there are some protection built into Chapter VI of the new bill, these are nowhere as comprehensive as the ones articulated in the Privacy Bill. Additionally, these protections are subject to broad exceptions which could significantly dilute their impact.

For more details visit http://editors.cis-india.org/internet-governance/blog/aadhaar-bill-fails-to-incorporate-suggestions-by-the-standing-committee

A Series of Op-eds on Data Protection

amber — 2018-02-19T02:08:28Z

I wrote a short series of three op-eds for Asia Times this week.

The first article "User consent is the key to data protection in India" examines the debate around consent and the arguments made to discard it. I question the premise of big data exceptionalism, particularly in the absence of any mature governance models which address use regulation.

In the second article "Robust economic argument for a sound Indian data protection law", I examine the substance of the argument of 'innovation' as a legitimate competing interest with respect to privacy, and questionthe economic arguments made in support of innovation enabled by unregulated access to data.

In the third article "India’s data protection law needs graded enforcement mechanism", I look at the two competing arms of regulation - enforcement and compliance, and how a balance of two is need in India,with an empowered regulator and drawing from the principles from responsive regulation theory.

For more details visit http://editors.cis-india.org/internet-governance/blog/a-series-of-op-eds-on-data-protection

Centre for Internet and Society

CIS Response to Draft E-Commerce Policy

Access our response to the draft policy here: Download (PDF)

Can the Judiciary Upturn the Lok Sabha Speaker’s Decision on Aadhaar?

Irregularity vs illegality

Call for Design Interns

Who can apply?

Skills

Duration of the internship

Location

Remuneration

How to apply?

Organisational policies

Breeding misinformation in virtual space

Beyond Public Squares, Dumb Conduits, and Gatekeepers: The Need for a New Legal Metaphor for Social Media

Beyond Public Squares, Dumb Conduits, and Gatekeepers: The Need for a New Legal Metaphor for Social Media

Introduction

Announcement of a Three-Region Research Alliance on the Appropriate Use of Digital Identity

Excerpt from the blog post by Subhashish Bhadra announcing this new research alliance

Analysis of Key Provisions of the Aadhaar Act Regulations

Introduction

Unique Identification Authority of India (Transactions of Business at Meetings of the Authority) Regulations[1]

Provision: Sub-Regulation 3.

Observations:

Provision: Sub-Regulation 8 (5)

Observations:

Provision: Sub-Regulation 14 (4)

Observations:

Unique Identification Authority of India (Enrolment and Update) Regulations[4]

Provisions:

Observations:

Provision: Sub-Regulation 32

Observations:

Aadhaar (Authentication) Regulations, 2016[6]

Provisions:

Observations:

Sub-Regulation 11 (1) and (4)

Observations:

Provision: Sub-Regulation 18 (2), (3) and (4)

Observations:

Aadhaar (Sharing of Information) Regulations, 2016 and Aadhaar (Data security) Regulations, 2016[7]

Provision: Sub-Regulation 6 (1)

Observations:

Conclusion

Amber Sinha and Pooja Saxena - The Fundamental Right to Privacy: A Visual Guide

Aadhar: Privacy is not a unidimensional concept

Aadhaar Bill fails to incorporate suggestions by the Standing Committee

A Series of Op-eds on Data Protection

Unique Identification Authority of India (Transactions of Business at Meetings of the Authority) Regulations^{^[1]}

Unique Identification Authority of India (Enrolment and Update) Regulations^{^[4]}

Aadhaar (Authentication) Regulations, 2016^{^[6]}

Aadhaar (Sharing of Information) Regulations, 2016 and Aadhaar (Data security) Regulations, 2016^{^[7]}