Centre for Internet and Society

WSIS+10 High Level Event: A Bird's Eye Report

geetha — 2014-06-20T15:57:32Z

The WSIS+10 High Level was organised by the ITU and collaborative UN entities on June 9-13, 2014. It aimed to evaluate the progress on implementation of WSIS Outcomes from Geneva 2003 and Tunis 2005, and to envision a post-2015 Development Agenda. Geetha Hariharan attended the event on CIS' behalf.

The World Summit on Information Society (WSIS) +10 High Level Event (HLE) was hosted at the ITU Headquarters in Geneva, from June 9-13, 2014. The HLE aimed to review the implementation and progress made on information and communication technology (ICT) across the globe, in light of WSIS outcomes (Geneva 2003 and Tunis 2005). Organised in three parallel tracks, the HLE sought to take stock of progress in ICTs in the last decade (High Level track), initiate High Level Dialogues to formulate the post-2015 development agenda, as well as host thematic workshops for participants (Forum track).

The High Level Track:

Opening Ceremony, WSIS+10 High Level Event (Source)

The High Level track opened officially on June 10, 2014, and culminated with the endorsement by acclamation (as is ITU tradition) of two Outcome Documents. These were: (1) WSIS+10 Statement on the Implementation of WSIS Outcomes, taking stock of ICT developments since the WSIS summits, (2) WSIS+10 Vision for WSIS Beyond 2015, aiming to develop a vision for the post-2015 global information society. These documents were the result of the WSIS+10 Multi-stakeholder Preparatory Platform (MPP), which involved WSIS stakeholders (governments, private sector, civil society, international organizations and relevant regional organizations).

The MPP met in six phases, convened as an open, inclusive consultation among WSIS stakeholders. It was not without its misadventures. While ITU Secretary General Dr. Hamadoun I. Touré consistently lauded the multi-stakeholder process, and Ambassador Janis Karklins urged all parties, especially governments, to “let the UN General Assembly know that the multi-stakeholder model works for Internet governance at all levels”, participants in the process shared stories of discomfort, disagreement and discord amongst stakeholders on various IG issues, not least human rights on the Internet, surveillance and privacy, and multi-stakeholderism. Richard Hill of the Association for Proper Internet Governance (APIG) and the Just Net Coalition writes that like NETmundial, the MPP was rich in a diversity of views and knowledge exchange, but stakeholders failed to reach consensus on crucial issues. Indeed, Prof. Vlamidir Minkin, Chairman of the MPP, expressed his dismay at the lack of consensus over action line C9. A compromise was agreed upon in relation to C9 later.

Some members of civil society expressed their satisfaction with the extensive references to human rights and rights-centred development in the Outcome Documents. While governmental opposition was seen as frustrating, they felt that the MPP had sought and achieved a common understanding, a sentiment echoed by the ITU Secretary General. Indeed, even Iran, a state that had expressed major reservations during the MPP and felt itself unable to agree with the text, agreed that the MPP had worked hard to draft a document beneficial to all.

Concerns around the MPP did not affect the review of ICT developments over the last decade. High Level Panels with Ministers of ICT from states such as Uganda, Bangladesh, Sweden, Nigeria, Saudi Arabia and others, heads of the UN Development Programme, UNCTAD, Food and Agriculture Organisation, UN-WOMEN and others spoke at length of rapid advances in ICTs. The focus was largely on ICT access and affordability in developing states. John E. Davies of Intel repeatedly drew attention to innovative uses of ICTs in Africa and Asia, which have helped bridge divides of affordability, gender, education and capacity-building. Public-private partnerships were the best solution, he said, to affordability and access. At a ceremony evaluating implementation of WSIS action-lines, the Centre for Development of Advanced Computing (C-DAC), India, won an award for its e-health application MOTHER.

The Outcome Documents themselves shall be analysed in a separate post. But in sum, the dialogue around Internet governance at the HLE centred around the success of the MPP. Most participants on panels and in the audience felt this was a crucial achievement within the realm of the UN, where the Tunis Summit had delineated strict roles for stakeholders in paragraph 35 of the Tunis Agenda. Indeed, there was palpable relief in Conference Room 1 at the CICG, Geneva, when on June 11, Dr. Touré announced that the Outcome Documents would be adopted without a vote, in keeping with ITU tradition, even if consensus was achieved by compromise.

The High Level Dialogues:

Prof. Vladimir Minkin delivers a statement. (Source)

The High Level Dialogues on developing a post-2015 Development Agenda, based on WSIS action lines, were active on June 12. Introducing the Dialogue, Dr. Touré lamented the Millennium Development Goals as a “lost opportunity”, emphasizing the need to alert the UN General Assembly and its committees as to the importance of ICTs for development.

As on previous panels, there was intense focus on access, affordability and reach in developing countries, with Rwanda and Bangladesh expounding upon their successes in implementing ICT innovations domestically. The world is more connected than it was in 2005, and the ITU in 2014 is no longer what it was in 2003, said speakers. But we lack data on ICT deployment across the globe, said Minister Knutssen of Sweden, recalling the gathering to the need to engage all stakeholders in this task. Speakers on multiple panels, including the Rwandan Minister for CIT, Marilyn Cade of ICANN and Petra Lantz of the UNDP, emphasized the need for ‘smart engagement’ and capacity-building for ICT development and deployment.

A crucial session on cybersecurity saw Dr. Touré envision a global peace treaty accommodating multiple stakeholders. On the panel were Minister Omobola Johnson of Nigeria, Prof. Udo Helmbrecht of the European Union Agency for Network and Information Security (ENISA), Prof. A.A. Wahab of Cybersecurity Malaysia and Simon Muller of Facebook. The focus was primarily on building laws and regulations for secure communication and business, while child protection was equally considered.

The lack of laws/regulations for cybersecurity (child pornography and jurisdictional issues, for instance), or other legal protections (privacy, data protection, freedom of speech) in rapidly connecting developing states was noted. But the question of cross-border surveillance and wanton violations of privacy went unaddressed except for the customary, unavoidable mention. This was expected. Debates in Internet governance have, in the past year, been silently and invisibly driven by the Snowden revelations. So too, at WSIS+10 Cybersecurity, speakers emphasized open data, information exchange, data ownership and control (the right to be forgotten), but did not openly address surveillance. Indeed, Simon Muller of Facebook called upon governments to publish their own transparency reports: A laudable suggestion, even accounting for Facebook’s own undetailed and truncated reports.

In a nutshell, the post-2015 Development Agenda dialogues repeatedly emphasized the importance of ICTs in global connectivity, and their impact on GDP growth and socio-cultural change and progress. The focus was on taking this message to the UN General Assembly, engaging all stakeholders and creating an achievable set of action lines post-2015.

The Forum Track:

Participants at the UNESCO session on its Comprehensive Study on Internet-related Issues (Source)

The HLE was organized as an extended version of the WSIS Forum, which hosts thematic workshops and networking opportunities, much like any other conference. Running in parallel sessions over 5 days, the WSIS Forum hosted sessions by the ITU, UNESCO, UNDP, ICANN, ISOC, APIG, etc., on issues as diverse as the WSIS Action Lines, the future of Internet governance, the successes and failures of WCIT-2012, UNESCO’s Comprehensive Study on Internet-related Issues, spam and a taxonomy of Internet governance.

Detailed explanation of each session I attended is beyond the scope of this report, so I will limit myself to the interesting issues raised.

At ICANN’s session on its own future (June 9), Ms. Marilyn Cade emphasized the importance of national and regional IGFs for both issue-awareness and capacity-building. Mr. Nigel Hickson spoke of engagement at multiple Internet governance fora: “Internet governance is not shaped by individual events”. In light of criticism of ICANN’s apparent monopoly over IANA stewardship transition, this has been ICANN’s continual response (often repeated at the HLE itself). Also widely discussed was the role of stakeholders in Internet governance, given the delineation of roles and responsibilities in the Tunis Agenda, and governments’ preference for policy-monopoly (At WSIS+10, Indian Ambassador Dilip Sinha seemed wistful that multilateralism is a “distant dream”).

This discussion bore greater fruit in a session on Internet governance ‘taxonomy’. The session saw Mr. George Sadowsky, Dr. Jovan Kurbalija, Mr. William Drake and Mr. Eliot Lear (there is surprisingly no official profile-page on Mr. Lear) expound on dense structures of Internet governance, involving multiple methods of classification of Internet infrastructure, CIRs, public policy issues, etc. across a spectrum of ‘baskets’ – socio-cultural, economic, legal, technical. Such studies, though each attempting clarity in Internet governance studies, indicate that the closer you get to IG, the more diverse and interconnected the eco-system gets. David Souter’s diagrams almost capture the flux of dynamic debate in this area (please see pages 9 and 22 of this ISOC study).

There were, for most part, insightful interventions from session participants. Mr. Sadowsky questioned the effectiveness of the Tunis Agenda delineation of stakeholder-roles, while Mr. Lear pleaded that techies be let to do their jobs without interference. Ms. Anja Kovacs raised pertinent concerns about including voiceless minorities in a ‘rough consensus’ model. Across sessions, questions of mass surveillance, privacy and data ownership rose from participants. The protection of human rights on the Internet – especially freedom of expression and privacy – made continual appearance, across issues like spam (Question 22-1/1 of ITU-D Study Group 1) and cybersecurity.

Conclusion:

The HLE was widely attended by participants across WSIS stakeholder-groups. At the event, a great many relevant questions such as the future of ICTs, inclusions in the post-2015 Development Agenda, the value of muti-stakeholder models, and human rights such as free speech and privacy were raised across the board. Not only were these raised, but cognizance was taken of them by Ministers, members of the ITU and other collaborative UN bodies, private sector entities such as ICANN, technical community such as the ISOC and IETF, as well as (obviously) civil society.

Substantively, the HLE did not address mass surveillance and privacy, nor of expanding roles of WSIS stakeholders and beyond. Processually, the MPP failed to reach consensus on several issues comfortably, and a compromise had to be brokered.

But perhaps a big change at the HLE was the positive attitude to multi-stakeholder models from many quarters, not least the ITU Secretary General Dr. Hamadoun Touré. His repeated calls for acceptance of multi-stakeholderism left many members of civil society surprised and tentatively pleased. Going forward, it will be interesting to track the ITU and the rest of UN’s (and of course, member states’) stances on multi-stakeholderism at the ITU Plenipot, the WSIS+10 Review and the UN General Assembly session, at the least.

For more details visit http://editors.cis-india.org/internet-governance/blog/wsis-10-high-level-event-a-birds-eye-report

Workshop Report - UIDAI and Welfare Services: Exclusion and Countermeasures

vanya — 2019-03-16T04:34:11Z

This report presents summarised notes from a workshop organised by the Centre for Internet and Society (CIS) on Saturday, August 27, 2016, to discuss, raise awareness of, and devise countermeasures to exclusion due to implementation of UID-based verification for and distribution of welfare services.

Introduction

The Centre for Internet and Society organised a workshop on "UIDAI and Welfare Services: Exclusion and Countermeasures" at the Institution of Agricultural on Technologists on August 27 in Bangalore to discuss, raise awareness of, and devise countermeasures to exclusion due to implementation of UID-based verification for and distribution of welfare services [1]. This was a follow-up to the workshop held in Delhi on “Understanding Aadhaar and its New Challenges” at the Centre for Studies in Science Policy, JNU on May 26th and 27th 2016 [2]. In this report we summarise the key concerns raised and the case studies presented by the participants at the workshop held on August 27, 2016.

Implementation of the UID Project

Question of Consent: The Aadhaar Act [3] states that the consent of the individual must be taken at the time of enrollment and authentication and it must be informed to him/her the purpose for which the data would be used. However, the Act does not provide for an opt-out mechanism and an individual is compelled to give consent to continue with the enrollment process or to complete an authentication.

Lack of Adherence to Court Orders: Despite of several orders by Supreme Court stating that use of Aadhaar cannot be made mandatory for the purpose of availing benefits and services, multiple state governments and departments have made it mandatory for a wide range of purposes like booking railway tickets [4], linking below the poverty line ration cards with Aadhaar [5], school examinations [6], food security, pension and scholarship [7], to name a few.

Misleading Advertisements: A concern was raised that individuals are being mislead in the necessity and purpose for enrollment into the project. For example, people have been asked to enrol by telling them that they might get excluded from the system and cannot get services like passports, banks, NREGA, salaries for government employees, denial of vaccinations, etc. Furthermore, the Supreme Court has ordered Aadhaar not be mandatory, yet people are being told that documentation or record keeping cannot be done without UID number.

Hybrid Governance: The participants pointed out that with the Aadhaar (Targeted delivery of financial and other subsidies, benefits and services) Act, 2016 (hereinafter referred to as Aadhaar Act, 2016 ) being partially enforced, multiple examples of exclusion as reported in the news are demonstrating how the Aadhaar project is creating a case of hybrid governance i.e private corporations playing a significant role in Governance. This can be seen in case of Aadhaar where we see many entities from private sector being involved in its implementation, as well as many software and hardware companies.

Lack of Transparency around Sharing of Biometric Data: The fact how and why the Government is relying on biometrics for welfare schemes is unclear and not known. Also, there is no information on how biometric data that is collected through the project is being used and its ability as an authenticating device. Along with that, there is very little information on companies that have been enlisted to hold and manage data and perform authentication.

Possibility of Surveillance: Multiple petitions and ongoing cases have raised concerns regarding the possibility of surveillance, tracking, profiling, convergence of data, and the opaque involvement of private companies involved in the project.

Denial of Information: In an RTI filed by one of the participant requesting to share the key contract for the project, it was refused on the grounds under section 8(1) (d) of the RTI Act, 2005. However, it was claimed that the provision would not be applicable since the contract was already awarded and any information disclosed to the Parliament should be disclosed to the citizens. The Central Information Commission issued a letter stating that the contractual obligation is over and a copy of the said agreement can be duly shared. However, it was discovered by the said participant that certain pages of the same were missing , which contained confidential information. When this issue went before appeal before the Information Commissioner, the IC gave an order to the IC in Delhi to comply with the previous order. However, it was communicated that limited financial information may be given, but not missing pages. Also, it was revealed that the UIDAI was supposed to share biometric data with NPR (by way of a MoU), but it has refused to give information since the intention was to discontinue NPR and wanted only UIDAI to collect data.

Concerns Arising from the Report of the Comptroller and Auditor General of India (CAG) on Implementation of PAHAL (DBTL) Scheme

A presentation on the CAG compliance audit report of PAHAL on LPG [8] revealed how the society was made to believe that UID will help deal with the issue of duplication and collection as well as use of biometric data will help. The report also revealed that multiple LPG connections have the same Aadhaar number or same bank account number in the consumer database maintained by the OMCs, the bank account number of consumers were also not accurately recorded, scrutiny of the database revealed improper capture of Aadhaar numbers, and there was incorrect seeding of IFSC codes in consumer database. The participants felt that this was an example of how schemes that are being introduced for social welfare do not necessarily benefit the society, and on the contrary, has led to exclusion by design. For example, in the year 2011, by was of the The Liquefied Petroleum Gas (Regulation of Supply and Distribution) Amendment Order, 2011 [9], the Ministry of Petroleum and Natural Gas made the Unique Identification Number (UID) under the Aadhaar project a must for availing LPG refills. This received a lot of public pushback, which led to non-implementation of the order. In October 2012, despite the UIDAI stating that the number was voluntary, a number of services began requiring the provision of an Aadhaar number for accessing benefits. In September 2013, when the first order on Aadhaar was passed by court [10], oil marketing companies and UIDAI approached the Supreme Court to change the same and allow them to make it mandatory, which was refused by the Court. Later in the year 2014, use of Aadhaar for subsidies was made mandatory. The participants further criticised the CAG report for revealing the manner in which linking Aadhaar with welfare schemes has allowed duplication and led to ghost beneficiaries where there is no information about who these people are who are receiving the benefits of the subsidies. For example, in Rajasthan, people are being denied their pension as they are being declared dead due to absence of information from the Aadhaar database.

It was said that the statistics of duplication mentioned in the report show how UIDAI (as it claims to ensure de-duplication of beneficiaries) is not required for this purpose and can be done without Aadhaar as well. Also, due to incorrect seeding of Aadhaar number many are being denied subsidy where there is no information regarding the number of people who have been denied the subsidy because of this. Considering these important facts from the audit report, the discussants concluded how the statistics reflect inflated claims by UIDAI and how the problems which are said to be addressed by using Aadhaar can be dealt without it. In this context, it is important to understand how the data in the aadhaar database maybe wrong and in case of e-governance the citizens suffer. Also, the fact that loss of subsidy-not in cash, but in use of LPG cylinder - only for cooking, is ignored. In addition to that, there is no data or way to check if the cylinder is being used for commercial purposes or not as RTI from oil companies says that no ghost identities have been detected.

UID-linked Welfare Delivery in Rajasthan

One speaker presented findings on people's experiences with UID-linked welfare services in Rajasthan, collected through a 100 days trip organised to speak to people across the state on problems related to welfare governance. This visit revealed that people who need the benefits and access to subsidies most are often excluded from actual services. It was highlighted that the paperless system is proving to be highly dangerous. Some of the cases discussed included that of a disabled labourer, who was asked to get an aadhaar card, but during enrollment asked the person standing next to him to put all his 5 fingers for biometric data collection. Due to this incorrect data, he is devoid of all subsidies since the authentication fails every time he goes to avail it. He stopped receiving his entitlements. Though problems were anticipated, the misery of the people revealed the extent of the problems arising from the project. In another case, an elderly woman living alone, since she could not go for Aadhaar authentication, had not been receiving the ration she is entitled to receive for the past 8 months. When the ration shop was approached to represent her case, the dealers said that they cannot provide her ration since they would require her thumb print for authentication. Later, they found out that on persuading the dealer to provide her with ration since Aadhaar is not mandatory, they found out that in their records they had actually mentioned that she was being given the ration, which was not the case. So the lack of awareness and the fact that people are entitled to receive the benefits irrespective of Aadhaar is something that is being misused by dealers. This shows how this system has become a barrier for the people, where they are also unaware about the grievance redressal mechanism.

Aadhaar and e-KYC

In this session, the use of Aadhaar for e-KYC verification was discussed The UID strategy document describes how the idea is to link UIDAI with money enabled Direct Benefit Transfer (DBT) to the beneficiaries without any reason or justification for the same. It was highlighted by one of the participants how the Reserve Bank of India (RBI) believed that making Aadhaar compulsory for e-KYC and several other banking services was a violation of the Money Laundering Act as well as its own rules and standards, however, later relaxed the rules to link Aadhaar with bank accounts and accepted its for e-KyC with great reluctance as the Department of Revenue thought otherwise. It was mentioned how allowing opening of bank accounts remotely using Aadhaar, without physically being present, was touted as a dangerous idea. However, the restrictions placed by RBI were suddenly done away with and opening bank accounts remotely was enabled via e-KYC.

A speaker emphasised that with emerging FinTech services in India being tied with Aadhaar via India Stack, the following concerns are becoming critical:

With RBI enabling creation of bank accounts remotely, it becomes difficult to to track who did e-KYC and which bank did it and hold the same accountable.
The Aadhaar Act 2016 states that UIDAI will not track the queries made and will only keep a record of Yes/No for authentication. For example, the e-KYC to open a bank account can now be done with the help of an Aadhaar number and biometric authentication. However, this request does not get recorded and at the time of authentication, an individual is simply told whether the request has been matched or not by way of a Yes/No [11]. Though UIDAI will maintain the authentication record, this may act as an obstacle since in case the information from the aadhaar database does not match, the person would not be able to open a bank account and would only receive a yes/no as a response to the request.
Further, there is a concern that the Aadhaar Enabled Payment System being implemented by the National Payment Corporation of India (NCPI) would allow effectively hiding of source and destination of money flow, leading to money laundering and cases of bribery. This possible as NCPI maintains a mapper where each bank account is linked (only the latest one). However, Aadhaar number can be linked with multiple bank accounts of an individual. So when a transaction is made, the mapper records the transaction only from that 1 account. But if another transaction takes place with another bank account, that record is not maintained by the mapper at NCPI since it records only transactions of the latest account seeded in that. This makes money laundering easy as the money moves from aadhaar number to aadhaar number now rather than bank account to bank account.

Endnotes

[1] See: http://cis-india.org/internet-governance/events/uidai-and-welfare-services-exclusion-and-countermeasures-aug-27.

[2] See: http://cis-india.org/internet-governance/blog/report-on-understanding-aadhaar-and-its-new-challenges.

[3] See: https://uidai.gov.in/beta/images/the_aadhaar_act_2016.pdf.

[4] See: http://scroll.in/latest/816343/aadhaar-numbers-may-soon-be-compulsory-to-book-railway-tickets.

[5] See: http://www.thehindu.com/news/national/karnataka/linking-bpl-ration-card-with-aadhaar-made-mandatory/article9094935.ece.

[6] See: http://timesofindia.indiatimes.com/india/After-scam-Bihar-to-link-exams-to-Aadhaar/articleshow/54000108.cms.

[7] See: http://www.dailypioneer.com/state-editions/cs-calls-for-early-steps-to-link-aadhaar-to-ac.html.

[8] See: http://www.cag.gov.in/sites/default/files/audit_report_files/Union_Commercial_Compliance_Full_Report_25_2016_English.pdf.

[9] See: http://petroleum.nic.in/docs/lpg/LPG%20Control%20Order%20GSR%20718%20dated%2026.09.2011.pdf.

[10] See: http://judis.nic.in/temp/494201232392013p.txt.

[11] Section 8(4) of the Aadhaar Act, 2016 states that "The Authority shall respond to an authentication query with a positive, negative or any other appropriate response sharing such identity information excluding any core biometric information."

For more details visit http://editors.cis-india.org/internet-governance/blog/workshop-report-uidai-and-welfare-services-august-27-2016

Workshop on 'Urban Data, Inequality and Justice in the Global South'

Admin — 2019-07-06T01:30:16Z

Aayush Rathi and Ambika Tandon presented our research on video-based surveillance in New Delhi at a workshop on urban data, inequality, and justice in the global South at the University of Manchester on 14 June 2019.

The agenda for the workshop and the presentations made by CIS can be accessed here. The research was conducted as part of a grant from the University, as part of a project on justice in data systems within cities. It will bepublished as a working paper by the university in July-August.

For more details visit http://editors.cis-india.org/internet-governance/news/workshop-on-urban-data-inequality-and-justice-in-the-global-south

Workshop on 'Privacy after Big Data' (Delhi, November 12)

sumandro — 2016-11-12T10:14:52Z

The Centre for Internet and Society (CIS) and the Sarai programme, CSDS, invite you to a workshop on 'Privacy after Big Data: What Changes? What should Change?' on Saturday, November 12. This workshop aims to build a dialogue around some of the key government-led big data initiatives in India and elsewhere that are contributing significant new challenges and concerns to the ongoing debates on the right to privacy. It is an open event. Please register to participate.

Invitation note and agenda: Download (PDF)

Venue and RSVP

Venue: Centre for the Study of Developing Societies 29, Rajpur Road, Civil Lines, Delhi 110054.

Location on Google Maps: https://www.google.com/maps/place/CSDS/@28.677775,77.2162523,17z/.

Registration: Complete this form.

Concept Note

In this age of big data, discussions about privacy are intertwined with the use of technology and the data deluge. Though big data possesses enormous value for driving innovation and contributing to productivity and efficiency, privacy concerns have gained significance in the dialogue around regulated use of data and the means by which individual privacy might be compromised through means such as surveillance, or protected. The tremendous opportunities big data creates in varied sectors ranges from financial technology, governance, education, health, welfare schemes, smart cities to name a few.

With the UID (“Aadhaar”) project re-animating the Right to Privacy debate in India, and the financial technology ecosystem growing rapidly, striking a balance between benefits of big data and privacy concerns is a critical policy question that demands public dialogue and research to inform an evidence based decision.

Also, with the advent of potential big data initiatives like the ambitious Smart Cities Mission under the Digital India Scheme, which would rely on harvesting large data sets and the use of analytics in city subsystems to make public utilities and services efficient, the tasks of ensuring data security on one hand and protecting individual privacy on the other become harder.

As key privacy principles are at loggerheads with big data activities, it is important to consider privacy as an embedded component in the processes, systems and projects, rather than being considered as an afterthought. These examples highlight the current state of discourse around data protection and privacy in India and the shapes they are likely to take in near future.

This workshop aims to build a dialogue around some of the key government-led big data initiatives in India and elsewhere that are contributing significant new challenges and concerns to the ongoing debates on the right to privacy.

Agenda

09:00-09:30 Tea and Coffee

09:30-10:00 Introduction

Mr. Amber Sinha and Mr. Sandeep Mertia
This session will introduce the topic of the workshop in the context of the ongoing works at CIS and Sarai.

10:00-11:00 From Privacy Bill(s) to ‘Habeas Data’

Dr. Usha Ramanathan and Mr. Vipul Kharbanda
This session will present a brief history of the privacy bill(s) in India and end with reflections on ‘habeas data’ as a lens for thinking and actualising privacy after big data.

11:00-11:30 Tea and Coffee

11:30-12:30 Digital ID, Data Protection, and Exclusion

Ms. Amelia Andersdotter and Mr. Srikanth Lakshmanan
This session will discuss national centralised digital ID systems, often operating at a cross-functional scale, and highlight its implications for discussions on data protection, welfare governance, and exclusion from public and private services.

12:30-13:30 Digital Money and Financial Inclusion

Dr. Anupam Saraph and Ms. Astha Kapoor
This session will focus on the rise of digital banking and online payments as core instruments of financial inclusion in India, especially in the context of the Jan Dhan Yojana and UPI, and reflect on the concerns around privacy and financial data.

13:30-14:30 Lunch

14:30-15:30 Big Data and Mass Surveillance

Dr. Anja Kovacs and Mr. Matthew Rice
This session will reflect on the rise of mass communication surveillance across the world, and the evolving challenges of regulating il/legal surveillance by government agencies.

15:30-16:15 Privacy is (a) Right

Mr. Apar Gupta and Ms. Kritika Bhardwaj
This brief session is to share initial ideas and strategies for articulating and actualising a constitutional right to privacy in India.

16:15-16:30 Tea and Coffee

16:30-17:30 Round Table

An open discussion session to conclude the workshop.

Speakers

Mr. Amber Sinha

Amber works on issues surrounding privacy, big data, and cyber security. He is interested in the impact of emerging technologies like artificial intelligence and learning algorithms on existing legal frameworks, and how they need to evolve in response. Amber studied humanities and law at National Law School of India University, Bangalore.

E-mail: amber at cis-india dot org.

Twitter: @ambersinha07.

Ms. Amelia Andersdotter

Amelia Andersdotter has been a Member of the European Parliament. She works on practical implications of data protection laws and consumer information security in Sweden, and digital rights in the Europe in general. Presently she is residing in Bangalore, where she is a visiting scholar with Centre for Internet and Society. She holds a BSc in Mathematics.

URL: https://dataskydd.net.

Twitter: @teirdes.

Dr. Anja Kovacs

Dr. Anja Kovacs directs the Internet Democracy Project in Delhi, India, which works for an Internet that supports free speech, democracy and social justice in India and beyond. Anja’s research and advocacy focuses especially on questions regarding freedom of expression, cybersecurity and the architecture of Internet governance. She has been a member of the of the Investment Committee of the Digital Defenders Partnership and of the Steering Committee of Best Bits, a global network of civil society members. She has also worked as an international consultant on Internet issues, including for the Independent Commission on Multilateralism, the United Nations Development Programme Asia Pacific and the UN Special Rapporteur on Freedom of Expression, Mr. Frank La Rue, as well as having been a Fellow at the Centre for Internet and Society in Bangalore, India.

Internet Democracy Project: https://internetdemocracy.in.

Twitter: @anjakovacs.

Dr. Anupam Saraph

Anupam Saraph has extensively researched India's UID number that has been widely regarded as the game changer in development programs. It has come to be linked with both public and private databases and become the requirement for access to entitlements, benefits, services and rights. Dr. Saraph, who has the design of at least two identification programs to his credit has researched the UID’s functional creep since its inception.

He has been dissecting the myths of what the UID is or is not. He has also tracked the consequences of its linkages on databases that protect national security, sovereignty, democratic status and the entire banking and money system in India. He has also highlighted the implications of its use for targeted delivery of cash subsidies from the Consolidated Fund of India. He has written and lectured widely about the devastating impact of the UID number on development programs, national security and the governability of India.

As a Professor of Systems, Governance and Decision Sciences, Environmental Systems and Business he mentors students and teaches systems, information systems, environmental systems and sustainable development at universities in Europe, Asia and the Americas. He has worked with the Rensselaer Polytechnic Institute, Rijksuniversitiet Groningen, RIVM, University of Edinburgh, Resource Use Institute, Systems Research Institute among others. Dr. Saraph has had the unique distinction of being India’s only person who has held the only office of a City CIO in India, in a PPP arrangement with government, industry and himself. He has also been the first e-governance Advisor to a State government. Dr. Saraph has held CxO and ministerial level positions and serves as an independent director on the boards of Public and Private Sector companies and NGOs. He is also the President of the Nagrik Chetna Manch, an NGO charged with the mission to bring accountability in governance.

Dr. Saraph is also actively engaged in civil society where he participates in several environmental, resource and nature conservation initiatives, has authored draft legislations for river and natural resource conservation, right to good governance and has contributed to governance, election and democratic reforms. Dr. Saraph is a regular columnist in newspapers and writes on issues of governance, future design, technology and education from a systems perspective.

As a future designer and recognized as a global expert on complex systems he helps individuals and organisations understand and design the future of their worlds. Together they address the toughest challenges, accomplish missions and achieve business goals. He also supports building capacity to address the challenges of today as well as to build future designs through teams and effective leadership. Since the eighties Dr. Saraph has modeled complex systems of cities, countries, regions and even the planet. His models have been awarded internationally and even placed in 10-year permanent exhibitions.

Dr Saraph works with business and government executives, civil society leaders, politicians, generals, civil servants, police, trade unionists, community activists, United Nations and ASEAN officials, judges, writers, media, architects, designers, technologists, scientists, entrepreneurs, board members and business leaders of small, mid and large single and trans-national companies, religious leaders and artists across a dozen countries and various industry sectors to help them and their organisations succeed in their missions. He advises the World Economic Forum through its Global Agenda Council for Complex Systems and the Club of Rome, Indian National Association as a founder life member.

Dr Saraph holds a PhD in designing sustainable systems from the faculty of Mathematics and Natural Sciences of the Rijksuniversiteit Groningen, the Netherlands.

Website: http://anupam.saraph.in.

Twitter: @anupamsaraph.

Mr. Apar Gupta

Apar Gupta practices law in Delhi. He is also one of the co-founders of the Internet Freedom Foundation. His work and writing on public interest issues can be accessed at his personal website www.apargupta.com.

Twitter: @aparatbar.

Ms. Astha Kapoor

Astha Kapoor is a public policy strategy consultant working on financial inclusion and digital payments. Currently, she is working with MicroSave. Her tasks involve a focus on government to people (G2P) payments - and her work spans strategy, advisory and evaluation with the DBT Mission, Office of the Chief Economic Advisor, NITI Aayog and ministries pertaining to food, fuel and fertilizer. She recently designed a pilot to digitize uptake of fertilizers in Krishna district, and evaluated the newly introduced coupon system in the Public Distribution System in Bengaluru.

Twitter: @kapoorastha.

Ms. Kritika Bhardwaj

Kritika Bhardwaj works as a Programme Officer at the Centre for Communication Governance (CCG), National Law University, Delhi. Her main areas of research are privacy and data protection. At CCG, she has written about the privacy implications of several contemporary issues such as Aadhaar (India's unique identification project), cloud computing and the right to be forgotten. A lawyer by training, Kritika has a keen interest in information law and human rights law.

Centre for Communication Governance, NLU Delhi: http://ccgdelhi.org.

Twitter: @Kritika12.

Mr. Matthew Rice

Matthew Rice is an Advocacy Officer at Privacy International working across the organisation engaging with international partners and strengthening their capacity on communications surveillance issues. He has previously worked at Privacy International as a consultant building the Surveillance Industry Index, the largest publicly available database on the private surveillance sector ever assembled. Matthew graduated from University of Aberdeen with an LLB (Hons.) and also has an MA in Human Rights from University College London.

Privacy International: https://privacyinternational.org.

Twitter: @mattr3.

Mr. Sandeep Mertia

Sandeep Mertia is a Research Associate at The Sarai Programme, Centre for the Study of Developing Societies, Delhi. He is an ICT engineer by training with research interests in Science & Technology Studies, Software Studies and Anthropology. He is conducting an ethnographic study of emerging modes of data-driven knowledge production in the social sector.

Sarai: http://sarai.net.

Twitter: @SandeepMertia.

Academia: https://daiict.academia.edu/SandeepMertia.

Mr. Srikanth Lakshmanan

Srikanth is a software professional with interests in Internet, follower of Internet policy discussions, volunteers for multiple online campaigns related to Internet. He is also fascinated by FOSS, opendata, localization, Wikipedia, maps, public transit, civic tech and occasionally contributes to them.

Site: http://www.srik.me.

Twitter: @logic.

Mr. Vipul Kharbanda

Vipul Kharbanda is a consultant with the Center for Internet and Society, Bangalore. After finishing his BA.LLB.(Hons.) from National Law School of India University in Bangalore, he worked for India’s largest corporate law firm for two and a half years in their Mumbai office for two years working primarily on the financing of various infrastructure projects such as Power Plants, Roads, Airports, etc. Since quitting his corporate law job, Vipul has been working as the Associate Editor in a legal publishing house which has been publishing legal books and journals for the last 90 years in India. He has also been involved with the Center for Internet and Society as a Consultant working primarily on issues related to privacy and surveillance.

For more details visit http://editors.cis-india.org/internet-governance/events/privacy-after-big-data-delhi-nov-12-2016

Why Data Localisation Might Lead To Unchecked Surveillance

pranesh — 2018-10-16T14:08:34Z

In recent times, there has been a rash of policies and regulations that propose that the data that Indian entities handle be physically stored on servers in India, in some cases exclusively. In other cases, only a copy needs to be stored.

The article was published in Bloomberg Quint on October 15, 2018 and also mirrored in the Quint.

In April 2018, the Reserve Bank of India put out a circular requiring that all “data relating to payment systems operated by them are stored in a system only in India” within six months. Lesser requirements have been imposed on all Indian companies’ accounting data since 2014 (the back-up of the books of account and other books that are stored electronically must be stored in India, the broadcasting sector under the Foreign Direct Investment policy, must locally store subscriber information, and the telecom sector under the Unified Access licence, may not transfer their subscriber data outside India).

The draft e-commerce policy has a wide-ranging requirement of exclusive local storage for “community data collected by Internet of Things devices in public space” and “data generated by users in India from various sources including e-commerce platforms, social media, search engines, etc.”, as does the draft e-pharmacy regulations, which stipulate that “the data generated” by e-pharmacy portals be stored only locally.

While companies such as Airtel, Reliance, PhonePe (majority-owned by Walmart) and Alibaba, have spoken up in support the government’s data localisation efforts, others like Facebook, Amazon, Microsoft, and Mastercard have led the way in opposing it.

Just this week, two U.S. Senators wrote to the Prime Minister’s office arguing that the RBI’s data localisation regulations along with the proposals in the draft e-commerce and cloud computing policies are “key trade barriers”. In her dissenting note to the Srikrishna Committee's report, Rama Vedashree of the Data Security Council of India notes that, “mandating localisation may potentially become a trade barrier and the key markets for the industry could mandate similar barriers on data flow to India, which could disrupt the IT-BPM (information technology-business process management) industry.”

Justification For Data Localisation

What are the reasons for these moves towards data localisation?

Given the opacity of policymaking in India, many of the policies and regulations provide no justification at all. Even the ones that do, don’t provide cogent reasoning.

The RBI says it needs “unfettered supervisory access” and hence needs data to be stored in India. However, it fails to state why such unfettered access is not possible for data stored outside of India.

As long as an entity can be compelled by Indian laws to engage in local data storage, that same entity can also be compelled by that same law to provide access to their non-local data, which would be just as effective.

What if they don’t provide such access? Would they be blacklisted from operating in India, just as they would if they didn’t engage in local data storage? Is there any investigatory benefit to storing data in India? As any data forensic expert would note, chain of custody and data integrity are what are most important components of data handling in fraud investigation, and not physical access to hard drives. It would be difficult for the government to say that it will block all Google services if the company doesn’t provide all the data that Indian law enforcement agencies request from it. However, it would be facile for the RBI to bar Google Pay from operating in India if Google doesn’t provide it “unfettered supervisory access” to data.

The most exhaustive justification of data localisation in any official Indian policy document is that contained in the Srikrishna Committee’s report on data protection. The report argues that there are several benefits to data localisation:

Effective enforcement,
Avoiding reliance on undersea cables,
Avoiding foreign surveillance on data stored outside India,
Building an “Artificial Intelligence ecosystem”

Of these, the last three reasons are risible.

Not A Barrier To Surveillance

Requiring mirroring of personal data on Indian servers will not magically give rise to experts skilled in statistics, machine learning, or artificial intelligence, nor will it somehow lead to the development of the infrastructure needed for AI.

The United States and China are both global leaders in AI, yet no one would argue that China’s data localisation policies have helped it or that America’s lack of data localisation polices have hampered it.

On the question of foreign surveillance, data mirroring will not have any impact, since the Srikrishna Committee’s recommendation would not prevent companies from storing most personal data outside of India.

Even for “sensitive personal data” and for “critical personal data”, which may be required to be stored in India alone, such measures are unlikely to prevent agencies like the U.S. National Security Agency or the United Kingdom’s Government Communications Headquarters from being able to indulge in extraterritorial surveillance.

In 2013, slides from an NSA presentation that were leaked by Edward Snowden showed that the NSA’s “BOUNDLESSINFORMANT” programme collected 12.6 billion instances of telephony and Internet metadata (for instance, which websites you visited and who all you called) from India in just one month, making India one of the top 5 targets.

This shows that technically, surveillance in India is not a challenge for the NSA.

So, forcing data mirroring enhances Indian domestic intelligence agencies’ abilities to engage in surveillance, without doing much to diminish the abilities of skilled foreign intelligence agencies.

As I have noted in the past, the technological solution to reducing mass surveillance is to use decentralised and federated services with built-in encryption, using open standards and open source software.

Reducing reliance on undersea cables is, just like reducing foreign surveillance on Indians’ data, a laudable goal. However, a mandate of mirroring personal data in India, which is what the draft Data Protection Bill proposes for all non-sensitive personal data, will not help. Data will stay within India if the processing happens within India. However, if the processing happens outside of India, as is often the case, then undersea cables will still need to be relied upon.

The better way to keep data within India is to incentivise the creation of data centres and working towards reducing the cost of internet interconnection by encouraging more peering among Internet connectivity providers.

While data mirroring will not help in improving the enforcement of any data protection or privacy law, it will aid Indian law enforcement agencies in gaining easier access to personal data.

The MLAT Route

Currently, many forms of law enforcement agency requests for data have to go through onerous channels called ‘mutual legal assistance treaties’. These MLAT requests take time and are ill-suited to the needs of modern criminal investigations. However, the U.S., recognising this, passed a law called the CLOUD Act in March 2018. While the CLOUD Act compels companies like Google and Amazon, which have data stored in Indian data centres, to provide that data upon receiving legal requests from U.S. law enforcement agencies, it also enables easier access to foreign law enforcement agencies to data stored in the U.S. as long as they fulfill certain procedural and rule-of-law checks.

While the Srikrishna Committee does acknowledge the CLOUD Act in a footnote, it doesn’t analyse its impact, doesn’t provide suggestions on how India can do this, and only outlines the negative consequences of MLATs.

Further, it is inconceivable that the millions of foreign services that Indians access and provide their personal data to will suddenly find a data centre in India and will start keeping such personal data in India. Instead, a much likelier outcome, one which the Srikrishna Committee doesn’t even examine, is that many smaller web services may find such requirements too onerous and opt to block users from India, similar to the way that Indiatimes and the Los Angeles Times opted to block all readers from the European Union due to the coming into force of the new data protection law.

The government could be spending its political will on finding solutions to the law enforcement agency data access question, and negotiating solutions at the international level, especially with the U.S. government. However it is not doing so.

Given this, the recent spate of data localisation policies and regulation can only be seen as part of an attempt to increase the scope and ease of the Indian government’s surveillance activities, while India’s privacy laws still remain very weak and offer inadequate legal protection against privacy-violating surveillance. Because of this, we should be wary of such requirements, as well as of the companies that are vocal in embracing data localisation.

For more details visit http://editors.cis-india.org/internet-governance/blog/bloomberg-quint-pranesh-prakash-october-15-2018-why-data-localisation-might-lead-to-unchecked-surveillance

Who Governs the Internet? Implications for Freedom and National Security

sunil — 2014-04-05T16:23:36Z

The second half of last year has been quite momentous for Internet governance thanks to Edward Snowden. German Chancellor Angela Merkel and Brazilian President Dilma Rousseff became aware that they were targets of US surveillance for economic not security reasons. They protested loudly.

The article was published in Yojana (April 2014 Issue). Click to download the original here. (PDF, 177 Kb)

The role of the US perceived by some as the benevolent dictator or primary steward of the Internet because of history, technology, topology and commerce came under scrutiny again. The I star bodies also known as the technical community - Internet Corporation for Assigned Names and Numbers (ICANN); five Regional Internet Registries (RIRs) ie. African, American, Asia-Pacific, European and Latin American; two standard setting organisations - World Wide Web Consortium (W3C) & Internet Engineering Task Force (IETF); the Internet Architecture Board (IAB); and Internet Society (ISOC) responded by issuing the Montevideo Statement [1] on the 7th of October. The statement expressed "strong concern over the undermining of the trust and confidence of Internet users globally due to recent revelations of pervasive monitoring and surveillance." It called for "accelerating the globalization of ICANN and IANA functions..." - did this mean that the I star bodies were finally willing to end the special role that US played in Internet governance? However, that dramatic shift in position was followed with the following qualifier "...towards an environment in which all stakeholders, including all governments, participate on an equal footing." Clearly indicating that for the I star bodies multistakeholderism was non-negotiable. Two days later President Rousseff after a meeting with Fadi Chehadé, announced on Twitter that Brazil would host "an international summit of governments, industry, civil society and academia." [2] The meeting has now been dubbed Net Mundial and 188 proposals for “principles” or “roadmaps for the further evolution of the Internet governance ecosystem” have been submitted for discussion in São Paulo on the 23rd and 24th of April. The meeting will definitely be an important milestone for multilateral and multi-stakeholder mechanisms in the ecosystem.

It has been more than a decade since this debate between multilateralism and multi-stakeholderism has ignited. Multistakeholderism is a form of governance that seeks to ensure that every stakeholder is guaranteed a seat at the policy formulation table (either in consultative capacity or in decision making capacity depending who you ask). The Tunis Agenda, which was the end result of the 2003-05 WSIS upheld the multistakeholder mode. The 2003–2005 World Summit on the Information Society process was seen by those favouring the status quo at that time as the first attempt by the UN bodies or multilateralism - to takeover the Internet. However, the end result i.e. Tunis Agenda [3] clarified and reaffirmed multi-stakeholderism as the way forward even though multilateral governance mechanisms were also accepted as a valid component of Internet governance. The list of stakeholders included states, the private sector, civil society, intergovernmental organisations, international standards organisations and the “academic and technical communities within those stakeholder groups mentioned” above. The Tunis Agenda also constituted the Internet Governance Forum (IGF) and the process of Enhanced Cooperation.

The IGF was defined in detail with a twelve point mandate including to “identify emerging issues, bring them to the attention of the relevant bodies and the general public, and, where appropriate, make recommendations.” In brief it was to be a learning Forum, a talk shop and a venue for developing soft law not international treaties. Enhanced Cooperation was defined as “to enable governments, on an equal footing, to carry out their roles and responsibilities, in international public policy issues pertaining to the Internet, but not in the day-to-day technical and operational matters, that do not impact on international public policy issues” – and to this day, efforts are on to define it more clearly.

Seven years later, during the World Conference on Telecommunication in Dubai, the status quoists dubbed it another attempt by the UN to take over the Internet. Even those non-American civil society actors who were uncomfortable with US dominance were willing to settle for the status quo because they were convinced that US court would uphold human rights online more robustly than most other countries. In fact, the US administration had laid a good foundation for the demonization of the UN and other nation states that preferred an international regime. "Internet freedom" was State Department doctrine under the leadership of Hillary Clinton. As per her rhetoric – there were good states, bad states and swing states. The US, UK and some Scandinavian countries were the defenders of freedom. China, Russia and Saudi Arabia were examples of authoritarian states that were balkanizing the Internet. And India, Brazil and Indonesia were examples of swing states – in other words, they could go either way – join the good side or the dark side.

But Internet freedom rhetoric was deeply flawed. The US censorship regime is really no better than China’s. China censors political speech – US censors access to knowledge thanks to the intellectual property (IP) rightsholder lobby that has tremendous influence on the Hill. Statistics of television viewership across channels around the world will tell us how the majority privileges cultural speech over political speech on any average day. The great firewall of China only affects its citizens – netizens from other jurisdictions are not impacted by Chinese censorship. On the other hand, the US acts of censorship are usually near global in impact.

This is because the censorship regime is not predominantly based on blocking or filtering but by placing pressure on identification, technology and financial intermediaries thereby forcing their targets offline. When it comes to surveillance, one could argue that the US is worse than China. Again, as was the case with censorship, China only conducts pervasive blanket surveillance upon its citizens – unlike US surveillance, which not only affects its citizens but targets every single user of the Internet through a multi-layered approach with an accompanying acronym soup of programmes and initiatives that include malware, trojans, software vulnerabilities, back doors in encryption standards, over the top service providers, telcos, ISPs, national backbone infrastructure and submarine fibre optic cables.

Security guru Bruce Schneier tells us that "there is no security without privacy. And liberty requires both security and privacy.” Blanket surveillance therefore undermines the security imperative and compromises functioning markets by make e-commerce, e-banking, intellectual property, personal information and confidential information vulnerable. Building a secure Internet and information society will require ending mass surveillance by states and private actors.

The Opportunity for India

Unlike the America with its straitjacketed IP regime, India believes that access to knowledge is a precondition for freedom of speech and expression. As global intellectual property policy or access to knowledge policy is concerned, India is considered a leader both when it comes to domestic policy and international policy development at the World Intellectual Property Organisation. From the 70s our policy-makers have defended the right to health in the form of access to medicines. More recently, India played a critical role in securing the Marrakesh Treaty for Visually Impaired Persons in June 2013 which introduces a user right [also referred to as an exception, flexibility or limitation] which allows the visually impaired to convert books to accessible formats without paying the copyright-holder if an accessible version has not been made available. The Marrakesh Treaty is disability specific [only for the visually impaired] and works specific [only for copyright]. This is the first instance of India successfully exporting policy best practices. India's exception for the disabled in the Copyright Act unlike the Marrakesh Treaty, however, is both disability-neutral and works-neutral.

Given that the Internet is critical to the successful implementation of the Treaty ie. cross border sharing of works that have been made accessible to disabled persons in one country with the global community, it is perhaps time for India to broaden its influence into the sphere of Internet governance and the governance of information societies more broadly.

Post-Snowden, the so called swing states occupy the higher moral ground. It is time for these states to capitalize on this moment using strong political will. Instead of just being a friendly jurisdiction from the perspective of access to medicine, it is time for India to also be the enabling jurisdiction for access to knowledge more broadly. We could use patent pools and compulsory licensing to provide affordable and innovative digital hardware [especially mobile phones] to the developing world. This would ensure that rights-holders, innovators, manufactures, consumers and government would all benefit from India going beyond being the pharmacy of the world to becoming the electronics store of the world. We could explore flat-fee licensing models like a broadband copyright cess or levy to ensure that users get content [text, images, video, audio, games and software] at affordable rates and rights-holders get some royalty from all Internet users in India. This will go a long way in undermining the copyright enforcement based censorship regime that has been established by the US. When it comes to privacy – we could enact a world-class privacy law and establish an independent, autonomous and proactive privacy commissioner who will keep both private and state actors on a short lease. Then we need a scientific, targeted surveillance regime that is in compliance with human rights principles. This will make India simultaneously an IP and privacy haven and thereby attract huge investment from the private sector, and also earn the goodwill of global civil society and independent media. Given that privacy is a precondition for security, this will also make India very secure from a cyber security perspective. Of course this is a fanciful pipe dream given our current circumstances but is definitely a possible future for us as a nation to pursue.

What is the scope of Internet Governance?

Part of the tension between multi-stakeholderism and multilateralism is that there is no single, universally accepted definition of Internet governance. The conservative definitions of Internet Governance limits it to management of critical Internet resources, including the domain name system, IP addresses and root servers – in other words, the ICANN, IANA functions, regional registries and other I* bodies. This is where US dominance has historically been most explicit. This is also where the multi-stakeholder model has clearly delivered so far and therefore we must be most careful about dismantling existing governance arrangements. There are very broadly four approaches for reducing US dominance here – a) globalization [giving other nation-states a role equal to the US within the existing multi-stakeholder paradigm], b) internationalization [bring ICANN, IANA functions, registries and I* bodies under UN control or oversight], c) eliminating the role for nation states in the IANA functions[4] and d) introducing competitors for names and numbers management. Regardless of the final solution, it is clear that those that control domain names and allocate IP addresses will be able to impact the freedom of speech and expression. The impact on the national security of India is very limited given that there are three root servers [5] within national borders and it would be near impossible for the US to shut down the Internet in India.

For a more expansive definition – The Working Group on Internet Governance report[6] has four categories for public policy issues that are relevant to Internet governance:

“(a) Issues relating to infrastructure and the management of critical Internet resources, including administration of the domain name system and Internet protocol addresses (IP addresses), administration of the root server system, technical standards, peering and interconnection, telecommunications infrastructure, including innovative and convergent technologies, as well as multilingualization. These issues are matters of direct relevance to Internet governance and fall within the ambit of existing organizations with responsibility for these matters;

(b) Issues relating to the use of the Internet, including spam, network security and cybercrime. While these issues are directly related to Internet governance, the nature of global cooperation required is not well defined;

(c)Issues that are relevant to the Internet but have an impact much wider than the Internet and for which existing organizations are responsible, such as intellectual property rights (IPRs) or international trade. ...;

(d) Issues relating to the developmental aspects of Internet governance, in particular capacity-building in developing countries.”

Some of these categories are addressed via state regulation that has cascaded from multilateral bodies that are associated with the United Nations such as the World Intellectual Property Organisation for "intellectual property rights" and the International Telecommunication Union for “telecommunications infrastructure”. Other policy issues such as "cyber crime" are currently addressed via plurilateral instruments – for example the Budapest Convention on Cybercrime – and bilateral arrangements like Mutual Legal Assistance Treaties. "Spam" is currently being handled through self-regulatory efforts by the private sector such as Messaging, Malware and Mobile Anti-Abuse Working Group.[7] Other areas where there is insufficient international or global cooperation include "peering and interconnection" - the private arrangements that exist are confidential and it is unclear whether the public interest is being adequately protected.

So who really governs the Internet?

So in conclusion, who governs the Internet is not really a useful question. This is because nobody governs the Internet per se. The Internet is a diffuse collection of standards, technologies and actors and dramatically different across layers, geographies and services. Different Internet actors – the government, the private sector, civil society and the technical and academic community are already regulated using a multiplicity of fora and governance regimes – self regulation, coregulation and state regulation. Is more regulation always the right answer? Do we need to choose between multilateralism and multi-stakeholderism? Do we need stable definitions to process? Do we need different version of multi-stakeholderism for different areas of governance for ex. standards vs. names and numbers? Ideally no, no, no and yes. In my view an appropriate global governance system will be decentralized, diverse or plural in nature yet interoperable, will have both multilateral and multistakeholder institutions and mechanisms and will be as interested in deregulation for the public interest as it is in regulation for the public interest.

[1]. Montevideo Statement on the Future of Internet Cooperation https://www.icann.org/en/news/announcements/announcement-07oct13-en.htm

[2]. Brazil to host global internet summit in ongoing fight against NSA surveillance http://rt.com/news/brazil-internet-summit-fight-nsa-006/

[3]. Tunis Agenda For The Information Society http://www.itu.int/wsis/docs2/tunis/off/6rev1.html

[4]. Roadmap for globalizing IANA: Four principles and a proposal for reform: a submission to the Global Multistakeholder Meeting on the Future of Internet Governance by Milton Mueller and Brenden Kuerbis March 3rd 2014 See: http://www.internetgovernance.org/wordpress/wp-content/uploads/ICANNreformglobalizingIANAfinal.pdf

[5]. Mumbai (I Root), Delhi (K Root) and Chennai (F Root). See: http://nixi.in/en/component/content/article/36-other-activities-/77-root-servers

[6]. Report of the Working Group on Internet Governance to the President of the Preparatory Committee of the World Summit on the Information Society, Ambassador Janis Karklins, and the WSIS Secretary-General, Mr Yoshio Utsumi. Dated: 14 July 2005 See: http://www.wgig.org/WGIG-Report.html

[7].Messaging, Malware and Mobile Anti-Abuse Working Group website See: http://www.maawg.org/

The author is is the Executive Director of the Centre for Internet and Society (CIS), Bangalore. He is also the founder of Mahiti, a 15 year old social enterprise aiming to reduce the cost and complexity of information and communication technology for the voluntary sector by using free software. He is an Ashoka fellow. For three years, he also managed the International Open Source Network, a project of United Nations Development Programme's Asia-Pacific Development Information Programme, serving 42 countries in the Asia-Pacific region.

For more details visit http://editors.cis-india.org/internet-governance/blog/yojana-april-2014-sunil-abraham-who-governs-the-internet-implications-for-freedom-and-national-security

Unpacking video-based surveillance in New Delhi

Aayush Rathi and Ambika Tandon — 2019-06-20T05:13:25Z

Aayush Rathi and Ambika Tandon presented at an international workshop on 'Urban Data, Inequality and Justice in the Global South', on 14 June 2019, at the University of Manchester. The agenda for the workshop and the slides from the presentation by Aayush and Ambika are available below.

Agenda of the workshop: Download (DOCX)

Slides from the presentation: Download (PDF)

The aim of the workshop was to present findings from case studies on urban data justice commissioned by the Sustainable Consumption Institute and Centre for Development Informatics at the University of Manchester, on aspects of justice in data systems in cities across the world. Aayush and Ambika presented their study on video-based surveillance in New Delhi, which was conducted across a period of 3 months earlier this year. The study aimed to assess the extent to which CCTV surveillance systems in Delhi support the needs of women in the city, including lower class women and those from informal settlements. The study will be published as a working paper by the University of Manchester in the coming months.

For more details visit http://editors.cis-india.org/raw/unpacking-video-based-surveillance-in-new-delhi-urban-data-justice

UN Human Rights Council urged to protect human rights online

geetha — 2014-06-19T13:28:32Z

63 civil society groups urged the UN Human Rights Council to address global challenges to freedom of expression, privacy and other human rights on the Internet. Centre for Internet & Society joined in the statement, delivered on behalf of the 63 groups by Article 19.

The 26th session of the United Nations Human Rights Council (UNHRC) is currently ongoing (June 10-27, 2014). On June 19, 2014, 63 civil society groups joined together to urge the United Nations Human Rights Council to protect human rights online and address global challenged to their realization. Centre for Internet & Society joined in support of the statement ("the Civil Society Statement"), which was delivered by Article 19 on behalf of the 63 groups.

In its consensus resolution A/HRC/20/8 (2012), the UNHRC affirmed that the "same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice". India, a current member of the UNHRC, stood in support of resolution 20/8. The protection of human rights online was also a matter of popular agreement at NETmundial 2014, which similarly emphasised the importance of protecting human rights online in accordance with international human rights obligations. Moreover, the WSIS+10 High Level Event, organised by the ITU in collaboration with other UN entities, emphasized the criticality of expanding access to ICTs across the globe, including infrastructure, affordability and reach.

The Civil Society Statement at HRC26 highlights the importance of retaining the Internet as a global resource - a democratic, free and pluralistic platform. However, the recent record of freedom of expression and privacy online have resulted in a deficit of trust and free, democratic participation. Turkey, Malaysia, Thailand, Egypt and Pakistan have blocked web-pages and social media content, while Edward Snowden's revelations have heightened awareness of human rights violations on the Internet.

At a time when governance of the Internet and its institutions is evolving, a human rights centred perspective is crucial. Openness and transparency - both in the governance of Internet institutions and rights online - are crucial to continuing growth of the Internet as a global, democratic and free resource, where freedom of expression, privacy and other rights are respected regardless of location or nationality. In particular, the Civil Society Statement calls attention to principles of necessity and proportionality to regulate targeted interception and collection of personal data.

The UNHRC, comprising 47 member states, is called upon to address these global challenges. Guided by resolutions A/HRC/20/8 and A/RES/68/167, the WSIS+10 High Level Event Outcome Documents (especially operative paragraphs 2, 8 and 11 of the Vision Document) and the forthcoming report of the UN High Commissioner for Human Rights regarding privacy in the digital age, the UNHRC as well as other states may gather the opportunity and intention to put forth a strong case for human rights online in our post-2015 development-centred world.

Civil Society Statement:

The full oral statement can be accessed here.

For more details visit http://editors.cis-india.org/internet-governance/blog/un-human-rights-council-urged-to-protect-human-rights-online

UAS License Agreement Amendment regarding the Central Monitoring System (CMS)

maria — 2014-01-30T12:43:56Z

For more details visit http://editors.cis-india.org/internet-governance/blog/uas-license-agreement-amendment

Transparency in Surveillance

vipul — 2016-01-23T15:11:18Z

Transparency is an essential need for any democracy to function effectively. It may not be the only requirement for the effective functioning of a democracy, but it is one of the most important principles which need to be adhered to in a democratic state.

Introduction

A democracy involves the state machinery being accountable to the citizens that it is supposed to serve, and for the citizens to be able to hold their state machinery accountable, they need accurate and adequate information regarding the activities of those that seek to govern them. However, in modern democracies it is often seen that those in governance often try to circumvent legal requirements of transparency and only pay lip service to this principle, while keeping their own functioning as opaque as possible.

This tendency to not give adequate information is very evident in the departments of the government which are concerned with surveillance, and merit can be found in the argument that all of the government's clandestine surveillance activities cannot be transparent otherwise they will cease to be "clandestine" and hence will be rendered ineffective. However, this argument is often misused as a shield by the government agencies to block the disclosure of all types of information about their activities, some of which may be essential to determine whether the current surveillance regime is working in an effective, ethical, and legal manner or not. It is this exploitation of the argument, which is often couched in the language of or coupled with concerns of national security, that this paper seeks to address while voicing the need for greater transparency in surveillance activities and structures.

In the first section the paper examines the need for transparency, and specifically deals with the requirement for transparency in surveillance. In the next part, the paper discusses the regulations governing telecom surveillance in India. The final part of the paper discusses possible steps that may be taken by the government in order to increase transparency in telecom surveillance while keeping in mind that the disclosure of such information should not make future surveillance ineffective.

Need for Transparency

In today's age where technology is all pervasive, the term "surveillance" has developed slightly sinister overtones, especially in the backdrop of the Edward Snowden fiasco. Indeed, there have been several independent scandals involving mass surveillance of people in general as well as illegal surveillance of specific individuals. The fear that the term surveillance now invokes, especially amongst those social and political activists who seek to challenge the status quo, is in part due to the secrecy surrounding the entire surveillance regime. Leaving aside what surveillance is carried out, upon whom, and when - the state actors are seldom willing and open to talk about how surveillance is carried out, how decisions regarding who and how to target, are reached, how agency budgets are allocated and spent, how effective surveillance actions were, etc. While there may be justified security based arguments to not disclose the full extent of the state's surveillance activities, however this cloak of secrecy may be used illegally and in an unauthorized manner to achieve ends more harmful to citizen rights than the maintenance of security and order in the society.

Surveillance and interception/collection of communications data can take place under different legal processes in different countries, ranging from court-ordered requests of specified data from telecommunications companies to broad executive requests sent under regimes or regulatory frameworks requiring the disclosure of information by telecom companies on a pro-active basis. However, it is an open secret that data collection often takes place without due process or under non-legal circumstances.

It is widely believed that transparency is a critical step towards the creation of mechanisms for increased accountability through which law enforcement and government agencies access communications data. It is the first step in the process of starting discussions and an informed public debate regarding how the state undertakes activities of surveillance, monitoring and interception of communications and data. Since 2010, a large number of ICT companies have begun to publish transparency reports on the extent that governments request their user data as well as requirements to remove content. However, governments themselves have not been very forthcoming in providing such detailed information on surveillance programs which is necessary for an informed debate on this issue.[1] Although some countries currently report limited information on their surveillance activities, e.g. the U.S. Department of Justice publishes an annual Wiretap Report (U.S. Courts, 2013a), and the United Kingdom publishes the Interception of Communications Commissioner Annual Report (May, 2013), which themselves do not present a complete picture, however even such limited measures are unheard of in a country such as India.

It is obvious that Governments can provide a greater level of transparency regarding the limits in place on the freedom of expression and privacy than transparency reports by individual companies. Company transparency reports can only illuminate the extent to which any one company receives requests and how that company responds to them. By contrast, government transparency reports can provide a much greater perspective on laws that can potentially restrict the freedom of expression or impact privacy by illustrating the full extent to which requests are made across the ICT industry. [2]

In India, the courts and the laws have traditionally recognized the need for transparency and derive it from the fundamental right to freedom of speech and expression guaranteed in our Constitution. This need coupled with a sustained campaign by various organizations finally fructified into the passage of the Right to Information Act, 2005, (RTI Act) which amongst other things also places an obligation on the sate to place its documents and records online so that the same may be freely available to the public. In light of this law guaranteeing the right to information, the citizens of India have the fundamental right to know what the Government is doing in their name. The free flow of information and ideas informs political growth and the freedom of speech and expression is the lifeblood of a healthy democracy, it acts as a safety valve. People are more ready to accept the decisions that go against them if they can in principle seem to influence them. The Supreme Court of India is of the view that the imparting of information about the working of the government on the one hand and its decision affecting the domestic and international trade and other activities on the other is necessary, and has imposed an obligation upon the authorities to disclose information.[3]

The Supreme Court, in Namit Sharma v. Union of India,[4] while discussing the importance of transparency and the right to information has held:

"The Right to Information was harnessed as a tool for promoting development; strengthening the democratic governance and effective delivery of socio-economic services. Acquisition of information and knowledge and its application have intense and pervasive impact on the process of taking informed decision, resulting in overall productivity gains .

……..

Government procedures and regulations shrouded in the veil of secrecy do not allow the litigants to know how their cases are being handled. They shy away from questioning the officers handling their cases because of the latters snobbish attitude. Right to information should be guaranteed and needs to be given real substance. In this regard, the Government must assume a major responsibility and mobilize skills to ensure flow of information to citizens. The traditional insistence on secrecy should be discarded."

Although these statements were made in the context of the RTI Act the principle which they try to illustrate can be understood as equally applicable to the field of state sponsored surveillance. Though Indian intelligence agencies are exempt from the RTI Act, it can be used to provide limited insight into the scope of governmental surveillance. This was demonstrated by the Software Freedom Law Centre, who discovered via RTI requests that approximately 7,500 - 9,000 interception orders are sent on a monthly basis.[5]

While it is true that transparency alone will not be able to eliminate the barriers to freedom of expression or harm to privacy resulting from overly broad surveillance,, transparency provides a window into the scope of current practices and additional measures are needed such as oversight and mechanisms for redress in cases of unlawful surveillance. Transparency offers a necessary first step, a foundation on which to examine current practices and contribute to a debate on human security and freedom.[6]

It is no secret that the current framework of surveillance in India is rife with malpractices of mass surveillance and instances of illegal surveillance. There have been a number of instances of illegal and/or unathorised surveillance in the past, the most scandalous and thus most well known is the incident where a woman IAS officer was placed under surveillance at the behest of Mr. Amit Shah who is currently the president of the ruling party in India purportedly on the instructions of the current prime minister Mr. Narendra Modi.[7] There are also a number of instances of private individuals indulging in illegal interception and surveillance; in the year 2005, it was reported that Anurag Singh, a private detective, along with some associates, intercepted the telephonic conversations of former Samajwadi Party leader Amar Singh. They allegedly contacted political leaders and media houses for selling the tapped telephonic conversation records. The interception was allegedly carried out by stealing the genuine government letters and forging and fabricating them to obtain permission to tap Amar Singh's telephonic conversations. [8] The same individual was also implicated for tapping the telephone of the current finance minister Mr. Arun Jaitely.[9]

It is therefore obvious that the status quo with regard to the surveillance mechanism in India needs to change, but this change has to be brought about in a manner so as to make state surveillance more accountable without compromising its effectiveness and addressing legitimate security concerns. Such changes cannot be brought about without an informed debate involving all stakeholders and actors associated with surveillance, however the basic minimum requirement for an "informed" debate is accurate and sufficient information about the subject matter of the debate. This information is severely lacking in the public domain when it comes to state surveillance activities - with most data points about state surveillance coming from news items or leaked information. Unless the state becomes more transparent and gives information about its surveillance activities and processes, an informed debate to challenge and strengthen the status quo for the betterment of all parties cannot be started.

Current State of Affairs

Surveillance laws in India are extremely varied and have been in existence since the colonial times, remnants of which are still being utilized by the various State Police forces. However in this age of technology the most important tools for surveillance exist in the digital space and it is for this reason that this paper shall focus on an analysis of surveillance through interception of telecommunications traffic, whether by tracking voice calls or data. The interception of telecommunications actually takes place under two different statutes, the Telegraph Act, 1885 (which deals with interception of calls) as well as the Information Technology Act, 2000 (which deals with interception of data).

Currently, the telecom surveillance is done as per the procedure prescribed in the Rules under the relevant sections of the two statutes mentioned above, viz. Rule 419A of the Telegraph Rules, 1951 for surveillance under the Telegraph Act, 1885 and the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 for surveillance under the Information Technology Act, 2000. These Rules put in place various checks and balances and try to ensure that there is a paper trail for every interception request. [10] The assumption is that the generation of a paper trail would reduce the number of unauthorized interception orders thus ensuring that the powers of interception are not misused. However, even though these checks and balances exist on paper as provided in the laws, there is not enough information in the public domain regarding the entire mechanism of interception for anyone to make a judgment on whether the system is working or not.

As mentioned earlier, currently the only sources of information on interception that are available in the public domain are through news reports and a handful of RTI requests which have been filed by various activists.[11] The only other institutionalized source of information on surveillance in India is the various transparency reports brought out by companies such as Google, Yahoo, Facebook, etc.

Indeed, Google was the first major corporation to publish a transparency report in 2010 and has been updating its report ever since. The latest data that is available for Google is for the period between January, 2015 to June, 2015 and in that period Google and Youtube together received 3,087 requests for data which asked for information on 4,829 user accounts from the Indian Government. Out of these requests Google only supplied information for 44% of the requests.[12] Although Google claims that they "review each request to make sure that it complies with both the spirit and the letter of the law, and we may refuse to produce information or try to narrow the request in some cases", it is not clear why Google rejected 56% of the requests. It may also be noted that the number of requests for information that Google received from India were the fifth highest amongst all the other countries on which information was given in the Transparency Report, after USA, Germany, France and the U.K.

Facebook's transparency report for the period between January, 2015 to June, 2015 reveals that Facebook received 5,115 requests from the Indian Government for 6,268 user accounts, out of which Facebook produced data in 45.32% of the cases.[13] Facebook's transparency report claims that they respond to requests relating to criminal cases and "Each and every request we receive is checked for legal sufficiency and we reject or require greater specificity on requests that are overly broad or vague." However, even in Facebook's transparency report it is unclear why 55.68% of the requests were rejected.

The Yahoo transparency report also gives data from the period between January 1, 2015 to June 30, 2015 and reveals that Yahoo received 831 requests for data, which related to 1,184 user accounts from the Indian Government. The Yahoo report is a little more detailed and also reveals that 360 of the 831 requests were rejected by Yahoo, however no details are given as to why the requests were rejected. The report also specifies that in 63 cases, no data was found by Yahoo, in 249 cases only non content data[14] was disclosed while in 159 cases content [15] was disclosed. The Yahoo report also claims that "We carefully scrutinize each request to make sure that it complies with the law, and we push back on those requests that don't satisfy our rigorous standards."

While the Vodafone Transparency Report gives information regarding government requests for data in other jurisdictions, [16] it does not give any information on government requests in India. This is because Vodafone interprets the provisions contained in Rule 25(4) of the IT (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 (Interception Rules) and Rule 11 of the IT (Procedure and Safeguards for Monitoring and Collecting Traffic Data or Information) Rules, 2009 as well as Rule 419A(19) of the Indian Telegraph Rules, 1954 which require service providers to maintain confidentiality/secrecy in matters relating to interception, as being a legal prohibition on Vodafone to reveal such information.

Apart from the four major companies discussed above, there are a large number of private corporations which have published transparency reports in order to acquire a sense of trustworthiness amongst their customers. Infact, the Ranking Digital Rights Project has been involved in ranking some of the biggest companies in the world on their commitment to accountability and has brought out the Ranking Digital Rights 2015 Corporate Accountability Index that has analysed a representative group of 16 companies "that collectively hold the power to shape the digital lives of billions of people across the globe".

Suggestions on Transparency

It is clear from the discussions above, as well as a general overview of various news reports on the subject, that telecom surveillance in India is shrouded in secrecy and it appears that a large amount of illegal and unauthorized surveillance is taking place behind the protection of this veil of secrecy. If the status quo continues, then it is unlikely that any meaningful reforms would take place to bring about greater accountability in the area of telecom surveillance. It is imperative, for any sort of changes towards greater accountability to take place, that we have enough information about what exactly is happening and for that we need greater transparency since transparency is the first step towards greater accountability.

Transparency Reports

In very simplistic terms transparency, in anything, can best be achieved by providing as much information about that thing as possible so that there are no secrets left. However, it would be naïve to say that all information about interception activities can be made public on the altar of the principle of transparency, but that does not mean that there should be no information at all on interception. One of the internationally accepted methods of bringing about transparency in interception mechanisms, which is increasingly being adopted by both the private sector as well as governments, is to publish Transparency Reports giving various details of interception while keeping security concerns in mind. The two types of transparency reports that we require in India and what that would entail is briefly discussed below:

By the Government

The problem with India's current regime for interception is that the entire mechanism appears more or less adequate on paper with enough checks and balances involved in it to prevent misuse of the allotted powers. However, because the entire process is veiled in secrecy, nobody knows exactly how good or how rotten the system has become and whether it is working to achieve its intended purposes. It is clear that the current system of interception and surveillance being followed by the government has some flaws, as can be gathered from the frequent news articles which talk about incidents of illegal surveillance. However, without any other official or more reliable sources of information regarding surveillance activities these anecdotal pieces of evidence are all we have to shape the debate regarding surveillance in India. It is only logical then that the debate around surveillance, which is informed by such sketchy and unreliable news reports will automatically be biased against the current mechanism since the newspapers would also only be interested in reporting the scandalous and the extraordinary incidents. For example, some argue that the government undertakes mass surveillance, while others argue that India only carries out targeted surveillance, but there is not enough information publicly available for a third party to support or argue against either claim. It is therefore necessary and highly recommended that the government start releasing a transparency report such as the one's brought out by the United States and the UK as mentioned above.

There is no need for a separate department or authority just to make the transparency report and this task could probably be performed in-house by any department, but considering the sector involved, it would perhaps be best if the Department of Telecommunications is given the responsibility to bring out a transparency report. These transparency reports should contain certain minimum amount of data for them to be an effective tool in informing the public discourse and debate regarding surveillance and interception. The report needs to strike a balance between providing enough information so that an informed analysis can be made of the effectiveness of the surveillance regime without providing so much information so as to make the surveillance activities ineffective. Below is a list of suggestions as to what kind of data/information such reports should contain:

Reports should contain data regarding the number of interception orders that have been passed. This statistic would be extremely useful in determining how elaborate and how frequently the state indulges in interception activities. This information would be easily available since all interception orders have to be sent to the Review Committee set up under Rule 419A of the Telegraph Rules, 1954.
The Report should contain information on the procedural aspects of surveillance including the delegation of powers to different authorities and individuals, information on new surveillance schemes, etc. This information would also be available with the Ministry of Home Affairs since it is a Secretary or Joint Secretary level officer in the said Ministry which is supposed to authorize every order for interception.
The report should contain an aggregated list of reasons given by the authorities for ordering interception. This information would reveal whether the authorities are actually ensuring legal justification before issuing interception or are they just paying lip service to the rules to ensure a proper paper trail. Since every order of interception has to be in writing, the main reasons for interception can easily be gleaned from a perusal of the orders.
It should also reveal the percentage of cases where interception has actually found evidence of culpability or been successful in prevention of criminal activities. This one statistic would itself give a very good review of the effectiveness of the interception regime. Granted that this information may not be very easily obtainable, but it can be obtained with proper coordination with the police and other law enforcement agencies.
The report should also reveal the percentage of order that have been struck down by the Review Committee as not following the process envisaged under the various Rules. This would give a sense of how often the Rules are being flouted while issuing interception orders. This information can easily be obtained from the papers and minutes of the meetings of the Review Committee.
The report should also state the number of times the Review Committee has met in the period being reported upon. The Review Committee is an important check on the misuse of powers by the authorities and therefore it is important that the Review Committee carries out its activities in a diligent manner.

It may be noted here that some provisions of the Telegraph Rules, 1954 especially sub-Rules 17 and 18 of Rule 419A as well as Rules 22, 23(1) and 25 of the Information Technology (Procedure and Safeguards for Monitoring and Collecting Traffic Data or Information) Rules, 2009 may need to be amended so as to make them compliant with the reporting mechanism proposed above.

By the Private Sector

We have already discussed above the transparency reports published by certain private companies. Suffice it to say that reports from private companies should give as much of the information discussed under government reports as possible and/or applicable, since they may not have a large amount of the information that is sought to be published in the government reports such as whether the interception was successful, the reasons for interception, etc. It is important to have ISPs provide such transparency reports as this will provide two different data points for information on interception and the very existence of these private reports may act as a check to ensure the veracity of the government transparency reports.

As in the case of government reports, for the transparency reports of the private sector to be effective, certain provisions of the Telegraph Rules, 1954 and the Information Technology (Procedure and Safeguards for Monitoring and Collecting Traffic Data or Information) Rules, 2009, viz. sub-Rules 14, 15 and 19 of Rule 419A of the Telegraph Rules, 1954 and Rules 20, 21, 23(1) and 25 of the Information Technology (Procedure and Safeguards for Monitoring and Collecting Traffic Data or Information) Rules, 2009.

Overhaul of the Review Committee

The Review Committee which acts as a check on the misuse of powers by the competent authorities is a very important cog in the entire process. However, it is staffed entirely by the executive and does not have any members of any other background. Whilst it is probably impractical to have civilian members in the Review Committee which has access to potentially sensitive information, it is extremely essential that the Committee has wider representation from other sectors specially the judiciary. One or two members from the judiciary on the Review Committee would provide a greater check on the workings of the Committee as this would bring in representation from the judicial arm of the State so that the Review Committee does not remain a body manned purely by the executive branch. This could go some ways to ensure that the Committee does not just "rubber stamp" the orders of interception issued by the various competent authorities.

Conclusion

It is not in dispute that there is a need for greater transparency in the government's surveillance activities in order to address the problems associated with illegal and unauthorised interceptions. This paper is not making the case that greater transparency in and by itself will be able to solve the problems that may be associated with the government's currency interception and surveillance regime, however it is not possible to address any problem unless we know the real extent of it. It is essential for an informed debate and discussion that the people participating in the discussion are "informed", i.e. they should have accurate and adequate information regarding the issues which are being discussed. The current state of the debate on interception is rife with individuals using illustrative and anecdotal evidence which, in the absence of any other evidence, they assume to be the norm.

A more transparent and forthcoming state machinery which regularly keeps its citizens abreast of the state of its surveillance regime would be likely to get better suggestions and perhaps less criticisms if it does come out that the checks and balances imposed in the regulations are actually making a difference to check unauthorized interceptions, and if not, then it is the right of the citizens to know about this and ask for reforms.

[1] James Losey, "Surveillance of Communications: A Legitimization Crisis and the Need for Transparency", International Journal of Communication 9(2015), Feature 3450-3459, 2015.

[2] Id.

[3] Namit Sharma v. Union of India, http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=39566.

[4] http://www.judis.nic.in/supremecourt/imgs1.aspx?filename=39566 . Although the judgment was overturned on review, however this observation quoted above would still hold as it has not been specifically overturned.

[5] http://sflc.in/wp-content/uploads/2014/09/SFLC-FINAL-SURVEILLANCE-REPORT.pdf .

[6] James Losey, "Surveillance of Communications: A Legitimization Crisis and the Need for Transparency", International Journal of Communication 9 (2015), Feature 3450-3459, 2015.

[7] http://gulail.com/the-stalkers/ .

[8] http://timesofindia.indiatimes.com/india/Amar-Singh-phone-tap-accused-tracked-Arun-Jaitleys-mobile/articleshow/18582508.cms .

[9] http://ibnlive.in.com/news/arun-jaitley-phonetapping-case-all-accused-get-bail/394997-37-64.html .

[10] For a detailed discussion of the Rules of interception please see Policy Paper on Surveillance in India, by Vipul Kharbanda, http://cis-india.org/internet-governance/blog/policy-paper-on-surveillance-in-india .

[11] As an example please see http://cis-india.org/internet-governance/resources/rti-on-officials-and-agencies-authorized-to-intercept-telephone-messages-in-india .

[12] https://www.google.com/transparencyreport/userdatarequests/countries/ .

[13] https://govtrequests.facebook.com/country/India/2015-H1/ .

[14] Non-content data (NCD) such as basic subscriber information including the information captured at the time of registration such as an alternate e-mail address, name, location, and IP address, login details, billing information, and other transactional information (e.g., "to," "from," and "date" fields from email headers).

[15] Data that users create, communicate, and store on or through Yahoo. This could include words in a communication (e.g., Mail or Messenger), photos on Flickr, files uploaded, Yahoo Address Book entries, Yahoo Calendar event details, thoughts recorded in Yahoo Notepad or comments or posts on Yahoo Answers or any other Yahoo property.

[16] https://www.vodafone.com/content/sustainabilityreport/2014/index/operating_responsibly/privacy_and_security/law_enforcement/country_by_country.html .

For more details visit http://editors.cis-india.org/internet-governance/blog/transparency-in-surveillance

The Fight for Digital Sovereignty

sunil — 2013-10-25T07:29:22Z

It is time to incorporate free software principles to address the issue of privacy. Thanks to the revelations of Edward Snowden, a former contractor to the United States (US) National Security Agency (NSA) who leaked secrets about the agency’s surveillance programmes, a 24-year-old movement aimed at protecting the rights of software users and developers has got some fresh attention from policymakers.

The article was published in the Economic & Political Weekly, Vol-XLVIII No. 42, October 19, 2013

The free and open source software movement (often collectively labelled as FOSS or sometimes FLOSS, with the “l” standing for “libre”) guarantees four freedoms through a copyright licence – the freedom to use for any purpose, the freedom to study the code, the freedom to modify it and the freedom to distribute the modified code gratis or for a fee. Free software principles have permeated the world in the form of movements around open standards, open content, open access and open data. The second freedom is the most critical in an open society. Privacy, security and integrity are best achieved through the transparency guaranteed by free software rather than the opacity of proprietary software.

Free software is directly useful in deciding on the software required for your device operating system and applications. NSA’s surveillance programme covered operating system vendors like Microsoft and Apple, and application vendors like Skype. The concerns raised by such surveillance programmes are best addressed by shifting to free software. Increasingly, this is possible on mobile devices because of the availability of Android derivatives that keep Google’s nose out of your business and on other personal computing devices through GNU/Linux distributions such as Ubuntu. Ideally, this should be accomplished by a mandate for government and public infrastructure in specific areas where free software alternatives are on par with proprietary competitors. Two other policy options remain outside procurement policies for hardware – code escrow and independent audits. Firms that are willing to share code with the government should be preferred over those that do not, thereby encouraging proprietary software companies to provide for the second freedom in free software within a limited context. Code escrow could improve the quality of the independent audit.

Unfortunately, open hardware based on free software principles is still a fringe phenomenon in terms of market share. The Indian government cannot afford bans on foreign products, unlike the intelligence and military of Australia, the US, Britain, Canada and New Zealand, which recently prohibited the use of Lenovo machines in “secret” and “top secret” networks. Last October, the US government banned US telecos from using equipment from Huawei and ZTE. Both these bans are not based on any credible public evidence regarding back doors in any of the products manufactured by these Chinese companies. The Indian government, using funds like the Universal Service Obligation Fund, should support competitive research to reverse-engineer and analyse all foreign and indigenous hardware to ensure that there is no national security threat or infringement on the individual’s right to privacy. One example would be a research project to determine whether China-manufactured phones call home when they are used on Indian telecom networks.

Cloud and other online services run by corporations could also completely undermine privacy and security. This again can be partially addressed through the transparency enabled by free software and open standards. To begin with, the government must ban the use of Google, Yahoo, Hotmail, etc, for official purposes by those in public office, law enforcement and the military, while simultaneously mandating the use of cryptography for all sensitive material and communication. It should not, however, mandate the use of National Informatics Centre (NIC) infrastructure as it may be a single point of failure; instead, a variety of open-standards-compliant and free-software-based infrastructure for all public sector information communication technology (ICT) requirements should be encouraged. This procurement bias will result in the growth of domestic server administration and security competence, thus creating and contributing towards the establishment of a market for affordable privacy and security-enhanced services that ordinary citizens and private sector organisations can access.

The end objective through means such as free software, open hardware, code escrow and independent audits is sovereignty over software, hardware, cloud and network infrastructure. However, the state, the private sector, the consumer and the citizen may disagree on the details. Apart from law enforcement and national security concerns that may require targeted surveillance, there are other occasions when technological possibilities may have to be curtailed through policy to protect human rights and the public interest. For example, to implement the internationally accepted privacy principle of notice on electronic recording devices, some jurisdictions may require that video recorders display a blinking red light and that digital cameras make an audible click sound just like analog cameras. This was first initiated in South Korea to reduce the incidence of “upskirt photography”. This type of law may become more commonplace when technologies like Google Glass become more popular. In other words, absolute digital sovereignty may need to be curtailed in order to protect human rights in certain circumstances. But code could be used to resist regulation through law, thereby converting both the software and hardware layers of devices and networks into a battleground for sovereignty between the free software hacker and the state.

For more details visit http://editors.cis-india.org/a2k/blogs/epw-vol-xlviii-42-october-19-2013-sunil-abraham-the-fight-for-digital-sovereignty

The Design & Technology behind India’s Surveillance Programmes

udbhav — 2017-01-20T15:56:44Z

There has been an exponential growth in the pervasive presence of technology in the daily lives of an average Indian citizen over the past few years. While leading to manifold increase in convenience and connectivity, these technologies also allow for far greater potential for surveillance by state actors.

While the legal and policy avenues of state surveillance in India have been analysed by various organisations, there is very little available information about the technology and infrastructure used to carry out this surveillance. This appears to be largely, according to the government, due to reasons of national security and sovereignty.^[1] This blog post will attempt to paint a picture of the technological infrastructure being used to carry out state surveillance in India.

Background
The revelations by Edward Snowden about mass surveillance in mid-2013 led to an explosion of journalistic interest in surveillance and user privacy in India.^[2] The reports and coverage from this period, leading up to early 2015, serve as the main authority for the information presented in this blog post. The lack of information from official government sources as well as decreasing public spotlight on surveillance since that point of time generally have both led to little or no new information turning up about India’s surveillance regime since this period. However, given the long term nature of these programmes and the vast amounts of time it takes to set them up, it is fairly certain that the programmes detailed below are still the primary bedrock of state surveillance in the country, albeit having become operational and inter-connected only in the past 2 years.

The technology being used to carry out surveillance in India over the past 5 years is largely an upgraded, centralised and substantially more powerful version of the surveillance techniques followed in India since the advent of telegraph and telephone lines: the tapping & recording of information in transit.^[3] The fact that all the modern surveillance programmes detailed below have not required any new legislation, law, amendment or policy that was not already in force prior to 2008 is the most telling example of this fact. The legal and policy implication of the programmes illustrated below have been covered in previous articles by the Centre for Internet & Society which can be found here,^[4] here^[5] and here.^[6] Therefore, this post will solely concentrate on the technological design and infrastructure being used to carry out surveillance along with any new developments in this field that the three source mentioned would not have covered from a technological perspective.

The Technology Infrastructure behind State Surveillance in India

The programmes of the Indian Government (in public knowledge) that are being used to carry out state surveillance are broadly eight in number. These exclude specific surveillance technology being used by independent arms of the government, which will be covered in the next section of this post. Many of the programmes listed below have overlapping jurisdictions and in some instances are cross-linked with each other to provide greater coverage:

Central Monitoring System (CMS)
National Intelligence Grid (NAT-GRID)
Lawful Intercept And Monitoring Project (LIM)
Crime and Criminal Tracking Network & Systems (CCTNS)
Network Traffic Analysis System (NETRA)
New Media Wing (Bureau of New and Concurrent Media)

The post will look at the technological underpinning of each of these programmes and their operational capabilities, both in theory and practice.

Central Monitoring System (CMS)

The Central Monitoring System (CMS) is the premier mass surveillance programme of the Indian Government, which has been in the planning stages since 2008^[7] Its primary goal is to replace the current on-demand availability of analog and digital data from service providers with a “central and direct” access which involves no third party between the captured information and the government authorities.^[8] While the system is currently operated by the Centre for Development of Telematics, the unreleased three-stage plan envisages a centralised location (physically and legally) to govern the programme. The CMS is primarily operated by Telecom Enforcement and Resource Monitoring Cell (TERM) within the Department of Telecom, which also has a larger mandate of ensuring radiation safety and spectrum compliance.

The technological infrastructure behind the CMS largely consists of Telecom Service Providers (TSPs) and Internet Service Providers (ISPs) in India being mandated to integrate Interception Store & Forward (ISF) servers with their Lawful Interception Systems required by their licences. Once these ISF servers are installed they are then connected to the Regional Monitoring Centres (RMC) of the CMS, setup according to geographical locations and population. Finally, Regional Monitoring Centre (RMC) in India is connected to the Central Monitoring System (CMS) itself, essentially allowing the collection, storage, access and analysis of data collected from all across the country in a centralised manner. The data collected by the CMS includes voice calls, SMS, MMS, fax communications on landlines, CDMA, video calls, GSM and even general, unencrypted data travelling across the internet using the standard IP/TCP Protocol.^[9]

With regard to the analysis of this data, Call Details Records (CDR) analysis, data mining, machine learning and predictive algorithms have been allegedly implemented in various degrees across this network.^[10] This allows state actors to pre-emptively gather and collect a vast amount of information from across the country, perform analysis on this data and then possibly even take action on the basis of this information by directly approaching the entity (currently the TERM under C-DOT) operating the system. ^[11] The system has reached full functionality in mid 2016, with over 22 Regional Monitoring Centres functional and the system itself being ‘switched on’ post trials in gradual phases.^[12]

National Intelligence Grid (NATGRID)

The National Intelligence Grid (NATGRID) is a semi-functional^[13] integrated intelligence grid that links the stored records and databases of several government entities in order to collect data, decipher trends and provide real time (sometimes even predictive) analysis of data gathered across law enforcement, espionage and military agencies. The programme intends to provide 11 security agencies real-time access to 21 citizen data sources to track terror activities across the country. The citizen data sources include bank account details, telephone records, passport data and vehicle registration details, the National Population Register (NPR), the Immigration, Visa, Foreigners Registration and Tracking System (IVFRT), among other types of data, all of which are already present within various government records across the country.^[14]

Data mining and analytics are used to process the huge volumes of data generated from the 21 data sources so as to analyse events, match patterns and track suspects, with big data analytics^[15] being the primary tool to effectively utilise the project, which was founded to prevent another instance of the September, 2011 terrorist attacks in Mumbai. The list of agencies that will have access to this data collection and analytics platform are the Central Board of Direct Taxes (CBDT), Central Bureau of Investigation (CBI), Defense Intelligence Agency (DIA), Directorate of Revenue Intelligence (DRI), Enforcement Directorate (ED), Intelligence Bureau (IB), Narcotics Control Bureau (NCB), National Investigation Agency (NIA), Research and Analysis Wing (RAW), the Military Intelligence of Assam , Jammu and Kashmir regions and finally the Home Ministry itself.^[16]

As of late 2015, the project has remained stuck because of bureaucratic red tape, with even the first phase of the four stage project not complete. The primary reason for this is the change of governments in 2014, along with apprehensions about breach of security and misuse of information from agencies such as the IB, R&AW, CBI, and CBDT, etc.^[17] However, the office of the NATGRID is now under construction in South Delhi and while the agency claims an exemption under the RTI Act as a Schedule II Organisation, its scope and operational reach have only increased with each passing year.

Lawful Intercept And Monitoring Project

Lawful Intercept and Monitoring (LIM), is a secret mass electronic surveillance program operated by the Government of India for monitoring Internet traffic, communications, web-browsing and all other forms of Internet data. It is primarily run by the Centre for Development of Telematics (C-DoT) in the Ministry of Telecom since 2011.^[18]

The LIM Programme consists of installing interception, monitoring and storage programmes at international gateways, internet exchange hubs as well as ISP nodes across the country. This is done independent of ISPs, with the entire hardware and software apparatus being operated by the government. The hardware is installed between the Internet Edge Router (PE) and the core network, allowing for direct access to all traffic flowing through the ISP. It is the primary programme for internet traffic surveillance in India, allowing indiscriminate monitoring of all traffic passing through the ISP for as long as the government desires, without any oversight of courts and sometimes without the knowledge of ISPs.^[19] One of the most potent capabilities of the LIM Project are live, automated keyword searches which allow the government to track all the information passing through the internet pipe being surveilled for certain key phrases in both in text as well in audio. Once these key phrases are successfully matched to the data travelling through the pipe using advanced search algorithms developed uniquely for the project, the system has various automatic routines which range from targeted surveillance on the source of the data to raising an alarm with the appropriate authorities.

LIM systems are often also operated by the ISPs themselves, on behalf of the government. They operate the device, including hardware upkeep, only to provide direct access to government agencies upon requests. Reports have stated that the legal procedures laid down in law (including nodal officers and formal requests for information) are rarely followed^[20] in both these cases, allowing unfettered access to petabytes of user data on a daily basis through these programmes.

Crime and Criminal Tracking Network & Systems (CCTNS)

The Crime and Criminal Tracking Network & System (CCTNS) is a planned network that allows for the digital collection, storage, retrieval, analysis, transfer and sharing of information relating to crimes and criminals across India.^[21] It is supposed to primarily operate at two levels, one between police stations and the second being between the various governance structures around crime detection and solving around the country, with access also being provided to intelligence and national security agencies.^[22]

CCTNS aims to integrate all the necessary data and records surrounding a crime (including past records) into a Core Application Software (CAS) that has been developed by Wipro.^[23] The software includes the ability to digitise FIR registration, investigation and charge sheets along with the ability to set up a centralised citizen portal to interact with relevant information. This project aims to use this CAS interface across 15, 000 police stations in the country, with up to 5, 000 additional deployments. The project has been planned since 2009, with the first complete statewide implementation going live only in August 2016 in Maharashtra. ^[24]

While seemingly harmless at face value, the project’s true power lies in two main possible uses. The first being its ability to profile individuals using their past conduct, which now can include all stages of an investigation and not just a conviction by a court of law, which has massive privacy concerns. The second harm is the notion that the CCTNS database will not be an isolated one but will be connected to the NATGRID and other such databases operated by organisations such as the National Crime Records Bureau, which will allow the information present in the CCTNS to be leveraged into carrying out more invasive surveillance of the public at large.^[25]

Network Traffic Analysis System (NETRA)

NETRA (NEtwork TRaffic Analysis) is a real time surveillance software developed by the Centre for Artificial Intelligence and Robotics (CAIR) at the Defence Research and Development Organisation. (DRDO) The software has apparently been fully functional since early 2014 and is primarily used by Indian Spy agencies, the Intelligence Bureau (IB) and the Research and Analysis Wing (RAW) with some capacity being reserved for domestic agencies under the Home Ministry.

The software is meant to monitor Internet traffic on a real time basis using both voice and textual forms of data communication, especially social media, communication services and web browsing. Each agency was initially allocated 1000 nodes running NETRA, with each node having a capacity to analyse 300GB of information per second, giving each agency a capacity of around 300 TB of information processing per second.^[26] This capacity is largely available only to agencies dealing with External threats, with domestic agencies being allocated far lower capacities, depending on demand. The software itself is mobile and in the presence of sufficient hardware capacity, nothing prevents the software from being used in the CMS, the NATGRID or LIM operations.

There has been a sharp and sudden absence of public domain information regarding the software since 2014, making any statements about its current form or evolution mere conjecture.

Analysis of the Collective Data

Independent of the capacity of such programmes, their real world operations work in a largely similar manner to mass surveillance programmes in the rest of the world, with a majority of the capacity being focused on decryption and storage of data with basic rudimentary data analytics.^[27] Keyword searches for hot words like 'attack', 'bomb', 'blast' or 'kill' in the various communication stream in real time are the only real capabilities of the system that have been discussed in the public domain,^[28] which along with the limited capacity of such programmes^[29] (300 TB) is indicative of basic level of analysis that is carried on captured data. Any additional details about the technical details about how India’s surveillance programmes use their captured data is absent from the public domain but they can presumed, at best, to operate with similar standards as global practices.^[30]

Capacitative Global Comparison

As can be seen from the post so far, India’s surveillance programmes have remarkably little information about them in the public domain, from a technical operation or infrastructure perspective. In fact, post late 2014, there is a stark lack of information about any developments in the mass surveillance field. All of the information that is available about the technical capabilities of the CMS, NATGRID or LIM is either antiquated (pre 2014) or is about (comparatively) mundane details like headquarter construction clearances.^[31] Whether this is a result of the general reduction in the attention towards mass surveillance by the public and the media^[32] or is the result of actions taken by the government under the “national security” grounds under as the Official Secrets Act, 1923^[33] can only be conjecture.

However, given the information available (mentioned previously in this article) a comparative points to the rather lopsided position in comparison to international mass surveillance performance. While the legal provisions in India regarding surveillance programmes are among the most wide ranging, discretionary and opaque in the world^[34] their technical capabilities seem to be anarchic in comparison to modern standards. The only real comparative that can be used is public reporting surrounding the DRDO NETRA project around 2012 and 2013. The government held a competition between the DRDO’s internally developed software “Netra” and NTRO’s “Vishwarupal” which was developed in collaboration with Paladion Networks.^[35] The winning software, NETRA, was said to have a capacity of 300 GB per node, with a total of 1000 sanctioned nodes.^[36] This capacity of 300 TB for the entire system, while seemingly powerful, is a miniscule fragment of 83 Petabytes traffic that is predicted to generated in India per day.^[37] In comparison, the PRISM programme run by the National Security Agency in 2013 (the same time that the NETRA was tested) has a capacity of over 5 trillion gigabytes of storage^[38], many magnitudes greater than the capacity of the DRDO software. Similar statistics can be seen from the various other programmes of NSA and the Five Eyes alliance,^[39] all of which operated at far greater capacities^[40] and were held to be minimally effective.^[41] The questions this poses of the effectiveness, reliance and proportionality of the Indian surveillance programme can never truly be answered due to the lack of information surrounding capacity and technology of the Indian surveillance programmes, as highlighted in the article. With regard to criminal databases used in surveillance, such as the NATGRID, equivalent systems both domestically (especially in the USA) and internationally (such as the one run by the Interpol)^[42] are impossible due to the NATGRID not even being fully operational yet.^[43]

Conclusion

Even if we were to ignore the issues in principle with mass surveillance, the pervasive, largely unregulated and mass scale surveillance being carried in India using the tools and technologies detailed above have various technical and policy failings. It is imperative that transparency, accountability and legal scrutiny be made an integral part of the security apparatus in India. The risks of security breaches, politically motivated actions and foreign state hacking only increase with the absence of public accountability mechanisms. Further, opening up the technologies used for these operations to regular security audits will also improve their resilience to such attacks.

^[1] http://cis-india.org/internet-governance/blog/the-constitutionality-of-indian-surveillance-law

^[2] http://india.blogs.nytimes.com/2013/07/10/how-surveillance-works-in-india/

^[3] https://www.privacyinternational.org/node/818

^[4] http://cis-india.org/internet-governance/blog/state-of-cyber-security-and-surveillance-in-india.pdf

^[5] http://cis-india.org/internet-governance/blog/security-surveillance-and-data-sharing.pdf

^[6] http://cis-india.org/internet-governance/blog/paper-thin-safeguards.pdf

^[7] http://pib.nic.in/newsite/PrintRelease.aspx?relid=54679 & http://www.dot.gov.in/sites/default/files/English%20annual%20report%202007-08_0.pdf

^[8] http://ijlt.in/wp-content/uploads/2015/08/IJLT-Volume-10.41-62.pdf

^[9] http://www.thehindu.com/scitech/technology/in-the-dark-about-indias-prism/article4817903.ece

^[10] http://cis-india.org/internet-governance/blog/india-centralmonitoring-system-something-to-worry-about

^[11] https://www.justice.gov/sites/default/files/pages/attachments/2016/07/08/ind195494.e.pdf

^[12] http://www.datacenterdynamics.com/content-tracks/security-risk/indian-lawful-interception-data-centers-are-complete/94053.fullarticle

^[13] http://natgrid.attendance.gov.in/ [Attendace records at the NATGRID Office!]

^[14] http://articles.economictimes.indiatimes.com/2013-09-10/news/41938113_1_executive-order-nationalintelligence-grid-databases

^[15] http://www.business-standard.com/article/current-affairs/natgrid-to-use-big-data-analytics-to-track-suspects-1

^[16] http://sflc.in/wp-content/uploads/2014/09/SFLC-FINAL-SURVEILLANCE-REPORT.pdf

^[17] http://indiatoday.intoday.in/story/natgrid-gets-green-nod-but-hurdles-remain/1/543087.html

^[18] http://www.thehindu.com/news/national/govt-violates-privacy-safeguards-to-secretly-monitor-internet-traffic/article5107682.ece

^[19] ibid

^[20] http://www.thehoot.org/story_popup/no-escaping-the-surveillance-state-8742

^[21] http://ncrb.gov.in/BureauDivisions/CCTNS/cctns.htm

^[22] ibid

^[23] http://economictimes.indiatimes.com/news/politics-and-nation/ncrb-to-connect-police-stations-and-crime-data-across-country-in-6-months/articleshow/45029398.cms

^[24] http://indiatoday.intoday.in/education/story/crime-criminal-tracking-network-system/1/744164.html

^[25] http://www.dailypioneer.com/nation/govt-cctns-to-be-operational-by-2017.html

^[26] http://articles.economictimes.indiatimes.com/2012-03-10/news/31143069_1_scanning-internet-monitoring-system-internet-data

^[27] Surveillance, Snowden, and Big Data: Capacities, consequences, critique: http://journals.sagepub.com/doi/pdf/10.1177/2053951714541861

^[28] http://www.thehindubusinessline.com/industry-and-economy/info-tech/article2978636.ece

^[29] See previous section in the article “NTRO”

^[30] Van Dijck, José. "Datafication, dataism and dataveillance: Big Data between scientific paradigm and ideology." Surveillance & Society 12.2 (2014): 197.

^[31] http://www.dailymail.co.uk/indiahome/indianews/article-3353230/Nat-Grid-knots-India-s-delayed-counter-terror-programme-gets-approval-green-body-red-tape-stall-further.html

^[32] http://cacm.acm.org/magazines/2015/5/186025-privacy-behaviors-after-snowden/fulltext

^[33] https://freedomhouse.org/report/freedom-press/2015/india

^[34] http://blogs.wsj.com/indiarealtime/2014/06/05/indias-snooping-and-snowden/

^[35] http://articles.economictimes.indiatimes.com/2012-03-10/news/31143069_1_scanning-internet-monitoring-system-internet-data

^[36] http://economictimes.indiatimes.com/tech/internet/government-to-launch-netra-for-internet-surveillance/articleshow/27438893.cms

^[37] http://trak.in/internet/indian-internet-traffic-8tbps-2017/

^[38] http://www.economist.com/news/briefing/21579473-americas-national-security-agency-collects-more-information-most-people-thought-will

^[39] http://www.washingtonsblog.com/2013/07/the-fact-that-mass-surveillance-doesnt-keep-us-safe-goes-mainstream.html

^[40] http://www.washingtonpost.com/wp-srv/special/politics/prism-collection-documents/

^[41] Supra Note 35

^[42] http://www.papillonfoundation.org/information/global-crime-database/

^[43] http://www.thehindu.com/opinion/editorial/Revive-NATGRID-with-safeguards/article13975243.ece

For more details visit http://editors.cis-india.org/internet-governance/blog/the-design-technology-behind-india2019s-surveillance-programmes

The Constitutionality of Indian Surveillance Law: Public Emergency as a Condition Precedent for Intercepting Communications

bedaavyasa — 2014-08-04T04:52:42Z

Bedavyasa Mohanty analyses the nuances of interception of communications under the Indian Telegraph Act and the Indian Post Office Act. In this post he explores the historical bases of surveillance law in India and examines whether the administrative powers of intercepting communications are Constitutionally compatible.

Introduction

State authorised surveillance in India derives its basis from two colonial legislations; §26 of the Indian Post Office Act, 1898 and §5 of the Telegraph Act, 1885 (hereinafter the Act) provide for the interception of postal articles[1] and messages transmitted via telegraph[2] respectively. Both of these sections, which are analogous, provide that the powers laid down therein can only be invoked on the occurrence of a public emergency or in the interest of public safety. The task of issuing orders for interception of communications is vested in an officer authorised by the Central or the State government. This blog examines whether the preconditions set by the legislature for allowing interception act as adequate safeguards. The second part of the blog analyses the limits of discretionary power given to such authorised officers to intercept and detain communications.

Surveillance by law enforcement agencies constitutes a breach of a citizen’s Fundamental Rights of privacy and the Freedom of Speech and Expression. It must therefore be justified against compelling arguments against violations of civil rights. Right to privacy in India has long been considered too ‘broad and moralistic’[3] to be defined judicially. The judiciary, though, has been careful enough to not assign an unbound interpretation to it. It has recognised that the breach of privacy has to be balanced against a compelling public interest [4] and has to be decided on a careful examination of the facts of a certain case. In the same breath, Indian courts have also legitimised surveillance by the state as long as such surveillance is not illegal or unobtrusive and is within bounds [5]. While determining what constitutes legal surveillance, courts have rejected “prior judicial scrutiny” as a mandatory requirement and have held that administrative safeguards are sufficient to legitimise an act of surveillance. [6]

Conditions Precedent for Ordering Interception

§§5(2) of the Telegraph Act and 26(2) of the Indian Post Office Act outline a two tiered test to be satisfied before the interception of telegraphs or postal articles. The first tier consists of sine qua nons in the form of an “occurrence of public emergency” or “in the interests of public safety.” The second set of requirements under the provisions is “the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence.” While vesting the power of interception in administrative officials, the sections contemplate a legal fiction where a public emergency exists and it is in the interest of sovereignty, integrity, security of the state or for the maintenance of public order/ friendly relations with foreign states. The term “public emergency,” however, has not been clearly defined by the legislature or by the courts. It thus vests arbitrary powers in a delegated official to order the interception of communication violating one’s Fundamental Rights.

Tracing the History of the Expression “Public Emergency”

The origins of the laws governing interception can be traced back to English laws of the late 19th Century; specifically one that imposed a penalty on a postal officer who delayed or intercepted a postal article.[7] This law guided the drafting of the Indian Telegraph Act in 1885 that legitimised interception of communications by the state. The expression “public emergency” appeared in the original Telegraph Act of 1885 and has been adopted in that form in all subsequent renderings of provisions relating to interception. Despite the contentious and vague nature of the expression, no consensus regarding its interpretation seems to have been arrived at. One of the first post-independence analyses of this provision was undertaken by the Law Commission in 1968. The 38th Law Commission in its report on the Indian Post Office Act, raised concerns about the constitutionality of the expression. The Law Commission was of the opinion that the term not having been defined in the constitution cannot serve as a reasonable ground for suspension of Fundamental Rights.[8] It further urged that a state of public emergency must be of such a nature that it is not secretive and is apparent to a reasonable man.[9] It thus challenged the operation of the act in its then current form where the determination of public emergency is the discretion of a delegated administrative official. The Commission, in conclusion, implored the legislature to amend the laws relating to interception to bring them in line with the Constitution. This led to the Telegraph (Amendment) Act of 1981. Questions regarding the true meaning of the expression and its potential misuse were brought up in both houses of the Parliament during passing of the amendment. The Law Ministry, however, did not issue any additional clarifications regarding the terms used in the Act. Instead, the Government claimed that the expressions used in the Act are “exactly those that are used in the Constitution.” [10] It may be of interest to note here that the Constitution of India, neither uses nor defines the term “public emergency.” Naturally, it is not contemplated as a ground for reasonably restricting Fundamental Rights provided under Article 19(1). [11] Similarly, concerns regarding the potential misuse of the powers were defended with the logically incompatible and factually inaccurate position that the law had not been misused in the past.[12]

Locating “Public Emergency” within a Proclamation of Emergency under the Constitution (?)

Public emergency in not equivalent to a proclamation of emergency under Article 352 of the Constitution simply because it was first used in legislations over six decades before the drafting of the Indian Constitution began. Besides, orders for interception of communications have also been passed when the state was not under a proclamation of emergency. Moreover, public emergency is not the only prerequisite prescribed under the Act. §5(2) states that an order for interception can be passed either on the occurrence of public emergency or in the interest of public safety. Therefore, the thresholds for the satisfaction of both have to be similar or comparable. If the threshold for the satisfaction of public emergency is understood to be as high as a proclamation of emergency then any order for interception can be passed easily under the guise of public safety. The public emergency condition will then be rendered redundant. Public emergency is therefore a condition that is separate from a proclamation of emergency.

In a similar vein the Supreme Court has also clarified[13] that terms like “public emergency” and “any emergency,” when used as statutory prerequisites, refer to the occurrence of different kinds of events. These terms cannot be equated with one another merely on the basis of the commonality of one word.

The Supreme Court in Hukam Chand v. Union of India,[14] correctly stated that the terms public emergency and public safety must “take colour from each other.” However, the court erred in defining public emergency as a situation that “raises problems concerning the interest of the public safety, the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or the prevention of incitement to the commission of an offence.” This cyclic definition does not lend any clarity to the interpretive murk surrounding the term. The Act envisages public emergency as a sine qua non that must exist prior to a determination that there is a threat to public order and sovereignty and integrity of the state. The court’s interpretation on the other hand would suggest that a state of public emergency can be said to exist only when public order, sovereignty and integrity of the state are already threatened. Therefore, while conditions precedent exist for the exercise of powers under §5(2) of the Act, there are no objective standards against which they are to be tested.

Interpretation of Threshold Requirements

A similar question arose before the House of Lords in Liversidge v. Anderson.[15] The case examined the vires of an Act that vested an administrative authority with the conditional power to detain a person if there was reasonable cause to believe that the person was of hostile origin. Therein, Lord Atkin dissenting with the majority opinion stated in no unclear terms that power vested in the secretary of state was conditional and not absolute. When a conditional authority is vested in an administrative official but there aren’t any prescriptive guidelines for the determination of the preconditions, then the statute has the effect of vesting an absolute power in a delegated official. This view was also upheld by the Supreme Court in State of Madhya Pradesh v. Baldeo Prasad.[16] The court was of the opinion that a statute must not only provide adequate safeguards for the protection of innocent citizens but also require the administrative authority to be satisfied as to the existence of the conditions precedent laid down in the statute before making an order. If the statute failed to do so in respect of any condition precedent then the law suffered from an infirmity and was liable to be struck down as invalid.[17] The question of the existence of public emergency, therefore being left to the sole determination of an administrative official is an absolute and arbitrary power and is ultra vires the Constitution

Interestingly, in its original unamended form, §5 contained a provisio stating that a determination of public emergency was the sole authority of the secretary of state and such a finding could not be challenged before a court of law. It is this provision that the government repealed through the Telegraph (Amendment) Act of 1981 to bring it in line with Constitutional principles. The preceding discussion shows that the amendment did not have the effect of rectifying the law’s constitutional infirmities. Nonetheless, the original Telegraph Act and its subsequent amendment are vital for understanding the compatibility of surveillance standards with the Constitutional principles. The draconian provisio in the original act vesting absolute powers in an administrative official illustrates that the legislative intent behind the drafting of a 130 year law cannot be relied on in today’s context. Vague terms like public emergency that have been thoughtlessly adopted from a draconian law find no place in a state that seeks to guarantee to its citizens rights of free speech and expression.

Conclusion

Interception of communications under the Telegraph Act and the Indian Post office act violate not only one’s privacy but also one’s freedom of speech and expression. Besides, orders for the tapping of telephones violate not only the privacy of the individual in question but also that of the person he/she is communicating with. Considering the serious nature of this breach it is absolutely necessary that the powers enabling such interception are not only constitutionally authorised but also adequately safeguarded. The Fundamental Rights declared by Article 19(1) cannot be curtailed on any ground outside the relevant provisions of Cls. 2-6.[18] The restrictive clauses in Cls. (2)-(6) of Article 19 are exhaustive and are to be strictly construed.[19] Public emergency is not one of the conditions enumerated under Article 19 for curtailing fundamental freedoms. Moreover, it lacks adequate safeguards by vesting absolute discretionary power in a non-judicial administrative authority. Even if one were to ignore the massive potential for misuse of these powers, it is difficult to conceive that the interception provisions would stand a scrutiny of constitutionality.

Over the course of the last few years, India has been dangerously toeing the line that keeps it from turning into a totalitarian surveillance state. [20] In 2011, India was the third most intrusive state[21] with 1,699 requests for removal made to Google; in 2012 that number increased to 2529[22]. The media is abuzz with reports about the Intelligence Bureau wanting Internet Service Providers to log all customer details [23] and random citizens being videotaped by the Delhi Police for “looking suspicious.” It becomes essential under these circumstances to question where the state’s power ends and a citizens’ privacy begins. Most of the information regarding projects like the CMS and the CCTNS is murky and unconfirmed. But under the pretext of national security, government officials have refused to divulge any information regarding the kind of information included within these systems and whether any accountability measures exist. For instance, there have been conflicting opinions from various ministers regarding whether the internet would also be under the supervision of the CMS [24]. Even more importantly, citizens are unaware of what rights and remedies are available to them in instances of violation of their privacy.

The intelligence agencies that have been tasked with handling information collected under these systems have not been created under any legislation and therefore not subject to any parliamentary oversight. Attempts like the Intelligence Services (Powers and Regulation) Bill, 2011 have been shelved and not revisited since their introduction. The intelligence agencies that have been created through executive orders enjoy vast and unbridled powers that make them accountable to no one[25]. Before, vesting the Indian law enforcement agencies with sensitive information that can be so readily misused it is essential to ensure that a mechanism to check the use and misuse of that power exists. A three judge bench of the Supreme Court has recently decided to entertain a Public Interest Litigation aimed at subjecting the intelligence agencies to auditing by the Comptroller and Auditor General of India. But the PIL even if successful will still only manage to scratch the surface of all the wide and unbridled powers enjoyed by the Indian intelligence agencies. The question of the constitutionality of interception powers, however, has not been subjected to as much scrutiny as is necessary. Especially at a time when the government has been rumoured to have already obtained the capability for mass dragnet surveillance such a determination by the Indian courts cannot come soon enough.

[1] Indian Post Office Act, 1898, § 26

[2] Indian Telegraph Act, 1885 § 5(2)

[3] PUCL v. Union of India, AIR 1997 SC 568

[4] Govind vs. State of Madhya Pradesh, (1975) 2 SCC 148

[5] Malak Singh vs. State Of Punjab & Haryana, AIR 1981 SC 760

[6] Supra note 3

[7] Law Commission, Indian Post Office Act, 1898 (38^th Law Commission Report) para 84

[8] ibid

[9] id

[10] Lok Sabha Debates , Minister of Communications, Shri H.N. Bahuguna, August 9, 1972

[11] The Constitution of India, Article 358- Suspension of provisions of Article 19 during emergencies

[12] Lok Sabha Debates , Minister of Communications, Shri H.N. Bahuguna, August 9, 1972

[13] Hukam Chand v. Union of India, AIR 1976 SC 789

[14] ibid

[15] Liversidge v. Anderson [1942] A.C. 206

[16] State of M.P. v. Baldeo Prasad, AIR 1961 (SC) 293 (296)

[17] ibid

[18] Ghosh O.K. v. Joseph E.X. Air 1963 SC 812; 1963 Supp. (1) SCR 789

[19] Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305 (315); 1962 (3) SCR 842

[20] See Notable Observations- July to December 2012, Google Transparency Report, available at http://www.google.com/transparencyreport/removals/government/ (last visited on July 2, 2014) (a 90% increase in Content removal requests by the Indian Government in the last year)

[21] Willis Wee, Google Transparency Report: India Ranks as Third ‘Snoopiest’ Country, July 6, 2011 available at http://www.techinasia.com/google-transparency-report-india/ (last visited on July 2, 2014)

[22] See Notable Observations- July to December 2012, Google Transparency Report, available at http://www.google.com/transparencyreport/removals/government/ (last visited on July 2, 2014) (a 90% increase in Content removal requests by the Indian Government in the last year)

[23] Joji Thomas Philip, Intelligence Bureau wants ISPs to log all customer details, December 30, 2010 http://articles.economictimes.indiatimes.com/2010-12-30/news/27621627_1_online-privacy-internet-protocol-isps (last visited on July 2, 2014)

[24] Deepa Kurup, In the dark about ‘India’s Prism’ June 16, 2013 available at http://www.thehindu.com/sci-tech/technology/in-the-dark-about-indias-prism/article4817903.ece

[25] Saikat Dutta, We, The Eavesdropped May 3, 2010 available at http://www.outlookindia.com/article.aspx?265191 (last visited on July 2, 2014)

For more details visit http://editors.cis-india.org/internet-governance/blog/the-constitutionality-of-indian-surveillance-law

Targeting surveillance

praskrishna — 2014-12-30T14:10:58Z

In the fall of 2005, Scotland Yard raided a flat in west London and arrested a suspected al-Qaeda militant known by a teasing Arabic nickname, Irhabi (“Terrorist”) 007.

The article by Ajai Sreevatsan was published in the Hindu on December 28, 2014. Sunil Abraham gave his inputs.

The similarities between Irhabi 007, later identified as Younis Tsouli, and India’s Mehdi Masoor Biswas are uncanny.

Neither participated in any terror attack. Their reputation stems from an alleged involvement as cyber propagandists for proto-terror groups — Irhabi was distributing manuals and teaching online seminars on behalf of the emerging al-Qaeda faction in Iraq, while Mehdi is alleged to be an IS sympathiser. Both in their early 20s with cover identities during the day, and separated by a decade in technological evolution.

Such expertise within terror groups is hardly surprising, says Sunil Abraham of the Centre for Internet and Society. “Any organisation engaged in a war for hearts and minds and oil fields will exploit contemporary technology to its fullest potential,” he says.

Irhabi currently serves a 16-year jail term, while Mehdi awaits his trial. What their cases highlight is that the phenomenon of young, tech-savvy armchair radicals is nothing new.

Research done at Israel’s Haifa University, which tracks the proliferation of terrorist websites, shows that the number of such sites went up from fewer than 100 in the late-1990s to more than 4,800 in just a decade. There is also credible evidence that an al-Qaeda website posted a sketched-out proposal for the 2004 Madrid bombings three months before the attack. Another macabre example is the crowd-sourcing effort launched in 2005 by the Victorious Army Group to build its website. By the competition’s rules, the winner would get to fire a rocket at an American base.

As Indian agencies gear up to respond to similar online threats in this part of the world, Mr. Abraham says India should not repeat the mistakes made by the West over the previous decade. “We should not get caught up in big data surveillance,” he says.

“Surveillance is like salt. It could be counter-productive even if slightly in excess. Ideally, surveillance must be targeted. Indiscriminate surveillance just increases the size of the haystack, making it difficult to find the needles,” Mr. Abraham says.

“Even in the case of Mehdi, his identity was uncovered not by online spying but by Channel 4 which did some old-fashioned detective work,” he says.

In any case, recent events show that the threat of online terror propaganda might be overblown. Much like online activism, it is subject to the law of diminishing returns.

A set of letters sent by newly recruited volunteers of IS was leaked to the French newspaper Le Figaro earlier this month and it shows youngsters complaining about being made to do the dishes or the Iraqi winter. One of them wrote: “I’m fed up to the back teeth. My iPod no longer works out here. I have got to come home.” Of the estimated 1,100 young French who are believed to have joined the IS, more than 100 have already returned.

The IS may have Twitter on its side. But the harsh realities of Iraq and the gruesome ideology behind the slick doctrinal videos are a lot harder to sell.

Mr. Abraham says there is no such thing as a Twitter revolution or a social media terror group. “Such statements underestimate the role of ideology and human beings,” he says.

For more details visit http://editors.cis-india.org/internet-governance/news/the-hindu-december-28-2014-ajai-sreevatsan-targeting-surveillance

Surveillance: Privacy Vs Security

praskrishna — 2013-08-19T05:32:55Z

The Foundation for Media Professionals is organizing a debate at the India International Centre, New Delhi on August 17, 2013. Shri Kapil Sibal will give the opening speech. Natgrid chief Raghu Raman is one of the debaters. Pranesh Prakash is participating in this event as a panelist.

This was published by the Foundation for Media Professionals on their website. Also read the blog post by Vivian Fernandes and Ninglun Hanghal.

In the backdrop of the recent disclosures by US defense contractor Edward Snowden about the activity of the National Security Agency (NSA) and reports that NSA may have collaborated with India on surveillance program in the country that have raised concerns about privacy and right of citizens, Foundation for Media Professionals (FMP) in partnership with Friedrich Ebert Stiftung (FES) invited Pranesh Prakash to a panel discussion on "Surveillance: Privacy vs. Security".

Guest Speaker
Kapil Sibal, Union Minister for Communications and Information Technology, Govt. of India

Panelists

Pranesh Prakash, Policy Director, Centre for Internet and Society

Dr. Usha Ramanathan, Independent Law Researcher
Saikat Datta, Resident Editor, DNA
Capt. Raghu Raman, National Intelligence Grid (Natgrid)

Moderator

Paranjoy Guha Thakurta

For more details visit http://editors.cis-india.org/news/foundation-for-media-professionals-august-17-2013-surveillance-privacy-v-security