Centre for Internet & Society

In this blogpost, Snehashish Ghosh analyzes privacy and security concerns which have surfaced with the digitization, centralization and standardization of the electoral database and argues that even though the law provides the scope for protection of electoral databases, the State has not taken any steps to ensure its safety.

The recent move by the Election Commission of India (ECI) to tie-up with Google for providing electoral look-up services for citizens and electoral information services has faced heavy criticism on the grounds of data security and privacy.[i] After due consideration, the ECI has decided to drop the plan.[ii]

The plan to partner with Google has led to much apprehension regarding Google gaining access to the database of 790 million voters including, personal information such as age, place of birth and residence. It could have also gained access to cell phone numbers and email addresses had the voter chosen to enroll via the online portal on the ECI website.  Although, the plan has been cancelled, it does not necessarily mean that the largest database of citizens of India is safe from any kind of security breach or abuse. In fact, the personal information of each voter in a constituency can be accessed by anyone through the ECI website and the publication of electoral rolls is mandated by the law.

Publication of Electoral Rolls
The electoral roll essentially contains the name of the voter, name of the relationship (son of/wife of, etc.), age, sex, address and the photo identity card number. The main objective of creation and maintenance of electoral rolls and the issue of Electoral Photo Identity Card (EPIC) was to ensure a free and fair election where the voter would have been  able to cast his own vote as per his own choice. In other words, the main purpose of the exercise was to curtail bogus voting. This is achieved by cross referencing the EPIC with the electoral roll.

The process of creation and maintenance of electoral rolls is governed by the Registration of Electors Rules, 1960. Rule 22 requires the registration officer to publish the roll with list of amendments at his office for inspection and public information. Furthermore, ECI may direct the registration officer to send two copies of the electoral roll to every political party for which a symbol has exclusively been reserved by the ECI. It can be safely concluded that the electoral roll of a constituency is a public document[iii] given that the roll is published and can be circulated on the direction of the ECI.

With the computational turn, in 1998 the ECI took the decision to digitize the electoral databases. Furthermore, printed electoral rolls and compact discs containing the rolls are available for sale to general public.[iv] In addition to that, the electoral rolls for the entire country are available on the ECI website.[v] However, the current database is not uniform and standardized, and entries in some constituencies are available only in the local language. The ECI has taken steps to make the database uniform, standardized and centralized.[vi]

Security Concerns
The Registration of Electoral Rules, 1960 is an archaic piece of delegated legislation which is still in force and casts a statutory duty on the ECI to publish the electoral rolls. The publication of electoral rolls is not a threat to security when it is distributed in hard copies and the availability of electoral rolls is limited. The security risks emerge only after the digitization of electoral database, which allows for uniformity, standardization and centralization of the database which in turn makes it vulnerable and subject to abuse. The law has failed to evolve with the change in technology.

In a recent article, Bill Davidow analyzes "the dark side of Moore’s Law" and argues that with the growth processing power there has been a growth in surveillance capabilities and on this note the article is titled, “With Great Computing Power Comes Great Surveillance”[vii] Drawing from Davidow’s argument, with the exponential growth in computing power, search has become convenient, faster and cheap. A uniform, standardized and centralized database bearing the personal information of 790 million voters can be searched and categorized in accordance with the search terms. The personal information of the voters can be used for good, but it can be equally abused if it falls into the wrong hands. Big data analysis or the computing power makes it easier to target voters, as bits and pieces of personal information give a bigger picture of an individual, a community, etc. This can be considered intrusive on individual’s privacy since the personal information of every voter is made available in the public domain

For example, the availability of a centralized, searchable database of voters along with their age would allow the appropriate authorities to identify wards or constituencies, which has a high population of voters above the age of 65. This would help the authority to set up polling booths at closer location with special amenities. However, the same database can be used to search for density of members of a particular community in a ward or constituency based on the name, age, sex of the voters. This information can be used to disrupt elections, target vulnerable communities during an election and rig elections.

Current IT Laws does not mandate the protection of the electoral database
A centralized electoral database of the entire country can be considered as a critical information infrastructure (CII) given the impact it may have on the election which is the cornerstone of any democracy. Under Section 70 of the Information Technology Act, 2000 (IT Act) CII means “the computer resource, incapacitation or destruction of which, shall have debilitating impact on national security, economy.”[viii] However, the appropriate Government has not notified the electoral database as a protected system[ix]. Therefore, information security practices and procedures for a protected system are not applicable to the electoral database.

The Information Technology Rules (IT Rules) are also not applicable to electoral databases, per se. Since, ECI is not a body corporate, the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information), Rules, 2011 (hereinafter Reasonable Security Practices Rules) do not apply to electoral databases. Ignoring that Reasonable Security Practices Rules only apply to a body corporate, the electoral database does fall within the ambit of definition of “personal information”[x] and should arguably be made subject to the Rules.

The intent of the ECI for hosting the entire country’s electoral database online inter alia is to provide electronic service delivery to the citizens. It seeks to provide “electoral look up services for citizens ... for better electoral information services.”[xi] However, the Information Technology (Electronic Service Delivery) Rules, 2011 are not applicable to the electoral database given that it is not notified by the appropriate Government as a service to be delivered electronically. Hence, the encryption and security standards for electronic service delivery are not applicable to electoral rolls.

The IT Act and the IT Rules provide a reasonable scope for the appropriate Government to include electoral databases within the ambit of protected system and electronic service delivery. However, the appropriate government has not taken any steps to notify electoral database as protected system or a mode of electronic service delivery under the existing laws.

Publication of electoral rolls is a necessary part of an election process. It ensures free and fair election and promotes transparency and accountability. But unfettered access to electronic electoral databases may have an adverse effect and would endanger the very goal it seeks to achieve because the electronic database may pose threat to privacy of the voters and also lead to security breach.  It may be argued that the ECI is mandated by the law to publish the electoral database and hence, it is beyond the operation of the IT Act. But Section 81 of the IT Act has an overriding effect on any law inconsistent, therewith. The appropriate Government should take necessary steps under the IT Act and notify electoral databases as a protected system.

It is recommended that the Electors Registration Rules, 1960 should be amended, taking into account the advancement in technology. Therefore, the Rules should aim at restricting the unfettered electronic access to the electoral database and also introduce purposive limitation on the use of the electoral database. It should also be noted that more adequate and robust data protection and privacy laws should be put in place, which would regulate the collection, use, storage and processing of databases which are critical to national security.

[i] Pratap Vikram Singh, Post-uproar, EC’s Google tie-up plan may go for a toss, Governance Now, January 7, 2014 available at http://www.governancenow.com/news/regular-story/post-uproar-ecs-google-tie-plan-may-go-toss

[ii] Press Note No.ECI/PN/1/2014, Election Commission of India , January 9, 2014 available at http://eci.nic.in/eci_main1/current/PN09012014.pdf

[iii] Section 74, Indian Evidence Act, 1872

[vi] “At present, in most States and UTs the Electoral Database is kept at the district level. In some cases it is kept even with the vendors. In most States/UTs it is maintained in MS Access, while in some cases it is on a primitive technology like FoxPro and in some other cases on advanced RDBMS like Oracle or Sql Server. The database is not kept in bilingual form in some of the States/UTs, despite instructions of the Commission. In most cases Unicode fonts are not used. The database structure not being uniform in the country, makes it almost impossible for the different databases to talk to each other” –  Election Commission of India, Revision of Electoral Rolls with reference to 01-01-2010 as the qualifying date – Integration and Standardization of the database- reg., No. 23/2009-ERS, January 6, 2010 available at eci.nic.in/eci_main/eroll&epic/ins06012010.pdf

[viii] Section 70, Information Technology Act, 2000

[ix] Computer resource which directly or indirectly affects the facility of Critical Information Infrastructure

[x] Rule 2(1)(i), Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011

[xi] Press Note No.ECI/PN/1/2014, Election Commission of India , January 9, 2014 available at http://eci.nic.in/eci_main1/current/PN09012014.pdf

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