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Comparison of General Data Protection Regulation and Data Protection Directive

Aditi Chaturvedi and Edited by Leilah Elmokadem — 2017-02-07T14:08:35Z

Recently, the General Data Protection Regulation (REGULATION (EU) 2016/679) was passed. It shall replace the present Data Protection Directive (DPD 95/46/EC), which is a step that is likely to impact the workings of many organizations. This document intends to offer a clear comparison between the General Data Protection Regulation (GDPR) a the Data Protection Direction (DPD).

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INTRODUCTION

The GDPR i.e. General Data Protection Regulation (REGULATION (EU) 2016/679) was adopted on May 27th, 2016. It will come into force after a two-year transition period on May 25th, 2018 and will replace the Data Protection Directive (DPD 95/46/EC). The Regulation intends to empower data subjects in the European Union by giving them control over the processing of their personal data. This is not an enabling legislation. Unlike the previous regime under the DPD (Data Protection Directive), wherein different member States legislated their own data protection laws, the new regulation intends uniformity in application with some room for individual member states to legislate on procedural mechanisms. While this will ensure a predictable environment for doing business, a number of obligations will have to be undertaken by organizations, which might initially burden them financially and administratively.

2. SUMMARY

The Regulation contains a number of new provisions as well as modified provisions that were under DPD and has removed certain requirements under the DPD. Some significant changes mentioned in the document have been summarized in this section.. These changes suggest that GDPR is a comprehensive law with detailed substantive and procedural provisions. Yet, some ambiguities remain with respect to its workability and interpretation. Clarifications will be required.

2.1 Provisions from the DPD that were retained but altered in the GDPR include:

2.1.1 Scope:

GDPR has an expanded territorial scope and is applicable under two scenarios; 1) when processor or controller is established in the Union, and 2) when processor or controller is not established in the Union. The conditions for applicability of the GDPR under the two are much wider than those provided for DPD. Also, the criteria under GDPR are more specific and clearer to demonstrate application.

2.1.2 Definitions:

Six definitions have remained the same while those of personal data and consent have been expanded.

2.1.3 Consent:

GDPR mentions "unambiguous" consent and spells out in detail what constitutes a valid consent. Demonstration of valid consent is an important obligation of the controller. Further, the GDPR also explains situations in which child's consent will be valid. Such provisions are absent in DPD.

2.1.4 Special categories of data:

Two new categories, biometric and genetic data have been added under GDPR.

2.1.5 Rights:

The GDPR strengthens certain rights granted under the DPD. These include:

a. Right to restrict processing: Under DPD the data subject can block processing of data on the grounds of data inaccuracy or incomplete nature of data. GDPR, on the other hand , is more elaborate and defined in this respect. Many more grounds are listed together with consequences of enforcement of this right and obligations on controller.

b. Right to erasure: This is known as the "right to be forgotten". Here, the DPD merely mentions that the data subject has the right to request erasure of data on grounds of data inaccuracy or incomplete nature of data or in case of unlawful processing. The GDPR has strengthened this right by laying out 7 conditions for enforcing this right including 5 grounds on which the request for erasure shall not be processed. This means that the "right to erasure" is not an absolute right. GDPR provides that if data has been made public, controllers are under an obligation to inform other controllers processing the data about the request.

c. Right to rectification: This right is similar under GDPR and DPD.

d. Right to access: GDPR has broadened the amount of information data subject can have regarding his/her own data. For example, under the DPD the data subject could know about the purpose of processing, categories of processing, recipients or categories to whom data are disclosed and extent of automated decision involved. Now under GDPR, the data subject can also know about retention period, existence of certain rights, about source of data and consequences of processing. It specifically states controllers obligations in this regard.

e. Automated individual decision making including profiling: This is an interesting provision that applies solely to automate decision-making. This includes profiling, which is a process by which personal data is evaluated solely by automated means for the purpose of analyzing a person's personal aspect such as performance at work, health, location etc. The intent is that data subjects should have the right to obtain human intervention into their personal data. This upholds philosophy of data safeguard as the subject can get an opportunity to express himself, obtain explanation and challenge the decision. Under GDPR, such decision-making excludes data concerning a child.

2.1.6 Code of conduct:

A voluntary self-regulating mechanism has been provided under both GDPR and DPD.

2.1.7 Supervisory Authority:

As compared to the DPD, the GDPR lays down detailed and elaborate provisions on Supervisory Authority.

2.1.8 Compensation and Liability:

Although compensation and liability provisions under GDPR and DPD are similar, the GDPR specifically mentions this as a right with a wider scope. While the Directive enforces liability on the controller only, under the GDPR, compensation can be claimed from both, processor and controller.

2.1.9 Effective judicial remedies:

Provisions in this area are also quite similar between the DPD and GDPR. The difference is that GDPR specifically mentions this as a "right" and the Directive does not. Use of such words is bound to bring legal clarity. It is interesting to note that in the DPD, recourse to remedy has been mentioned in the Recitals and it is the national law of individual member states, which shall regulate the enforceability. GDPR, on the other hand, mentions this under its Articles together with the jurisdiction of courts and exceptions to this right.

2.1.10 Right to lodge complaint with supervisory authority:

The right conferred to the data subject to seek remedy under unlawful processing has been strengthened under GDPR. Again, as mentioned above, GDRP specifically words this as a "right" while the DPD does not.

2.2 New provisions added to the GDPR include:

2.2.1 Data Transfer to third countries:

Provisions under Chapter V of GDPR regulate data transfers from EU to third countries and international organizations and data transfer onward. DPD only provides for data transfer to third countries without reference to international organizations.

A mechanism called adequacy decisions for such transfers remains the same under both laws. However, in situations where Commission does not take adequacy decisions, alternate and elaborate provisions on "Effective Safeguards" and "Binding Corporate Rules" have been mentioned under the GDPR. Other certain situations have been envisaged under both GDPR and DPD for data transfers in absence of adequacy decision. These are more or less similar with a only few modifications.

Significantly, GDPR brings clarity with respect to enforceability of judgments and orders of authorities that are outside of EU over their decision on such data transfer. Additionally, it provides for international cooperation for protection of personal data. These are not mentioned in the DPD.

2.2.2 Certification mechanism:

Just like code of conduct, this is also a voluntary mechanism, which can aid in demonstrating compliance with Regulation.

2.2.3 Records of processing activities:

This is a mandatory "compliance demonstration" mechanism under GDPR, which is not mentioned under DPD. Organizations are likely to face initial administrative and financial burdens in order to maintain records of processing activities.

2.2.4 Obligations of processor:

DPD fixes liability on controllers but leaves out processors. GDPR includes both. Consequently, GDPR specifies obligations of the processor, the kinds of processors the controller can use and what will govern processing.

2.2.5 Data Protection officer:

This finds no mention in the DPD. Under the GDPR, a data protection officer must be mandatorily appointed where the core business activity of the organization pertains to processing, which requires regular and systematic monitoring of data subjects on large scale, processing of large scale special categories of data and offences, or processing carried out by public authority or public body.

2.2.6 Data protection impact assessment:

This is a Privacy Impact assessment for ensuring and demonstrating compliance with the Regulation. Such assessment can identify and minimize risks. GDPR mandates that such assessment must be carried out when processing is likely to result in high risk. The relevant Article mentions when to carry out processing, the type of information to be contained in assessment and a clause for prior consultation with supervisory authority prior to processing if assessment indicates high risk.

2.2.7 Data Breach:

Under this provision, the controller is responsible for two things: 1) reporting personal data breach to supervisory authority no later than 72 hours . Any delay in notifying the authority has to be accompanied by reasons for delay; and 2) communicating the breach to the data subject in case the breach is likely to cause high risk to right and freedoms of the person. As far as the processor is concerned, in the event of data breach, the processor must notify the controller. This provision is likely to push some major changes in the workings of various organizations. A number of detection and reporting mechanisms will have to be implemented. Above all, these mechanisms will have to be extremely efficient given the time limit.

2.2.8 Data Protection by design and default:

This entails a general obligation upon the controller to incorporate effective data protection in internal policies and implementation measures.

2.2.9 Rights:

Under the GDPR, a new right called the " Right to data portability " has been conferred upon the data subjects. This right empowers the data subject to receive personal data from one controller and transfer it to another.

2.2.10 New Definitions:

Out of 26 definitions, 18 new definitions have been added. "Pseudonymisation" is one such new concept that can aid data privacy. This data processing technique encourages processing in a way that personal data can no longer be attributed to a specific data subject without using additional information. This additional information is to be stored separately in a way that it is not attributed to an identified or identifiable natural person.

2.2.11 Administrative fines:

Perhaps much concern about GDPR is due to provisions on high fines for non-compliance of certain provisions. Organizations simply cannot afford to ignore it. Non-compliance can lead to imposition of very heavy fines up to 20,000,000 EUR or 4% of total worldwide turnover.

2.3 Deleted provisions under DPD include :

2.3.1 Working Party:

Working party under the DPD has been replaced by the European Data Protection Board provided by the GDPR. The purpose of the Board is to ensure consistent application of the Regulation.

2.3.2 Notification Requirement:

The general obligation to notify processing supervisory authorities has been removed. It was observed that this requirement imposed unnecessary financial and administrative burden on organizations and was not successful in achieving the real purpose that is protection of personal data. Instead, now the GDPR focuses on procedures and mechanisms like Privacy Impact assessment to ensure compliance.

3. BRIEF OVERVIEW

The GDPR is the new uniform law, which will now replace older laws. A brief overview has been given below:

Topic	GDPR (General Data Protection Regulation)	DPD (Data Protection Directive)

Name	REGULATION (EU) 2016/679	DPD 95/46/EC
Enforcement	Adopted on 27 May 2016 To be enforced on 25 May 2018	Adopted on 24 October 1995
Effect of legislation	It is a Regulation. Is directly applicable to all EU member states without requiring a separate national legislation.	It is an enabling legislation. Countries have to pass their own separate legislations.
Objective	To protect "natural persons" with regard to processing of personal data and on free movement of such data. It repeals DPD 95/46/EC.	To protect "individuals" with regard to processing of personal data and on free movement of such data.
Number of Chapters	XI	VII
Number of Articles	99	34
Number of Recitals	173	72
Applicability	To processors and controllers	Same

4. COMPARATIVE ANALYSIS OF GDPR AND DPD

This section offers a comparative analysis through a set of tables and text analysing and comparing the provisions of General Data Protection Regulation (GDPR) with those of the Data Protection Direction (DPD). Spaces left blank in the tables imply lack of similar provisions under the respective data regime.

4.1 Territorial Scope

GDPR has expanded territorial scope. The application of Regulation is independent of the place where processing of personal data takes places under certain conditions. The focus is the data subject and not the location. The DPD made application of national law, a criterion for determining the applicability of the Directive. Under the GDPR, the following conditions need to be satisfied for application of Regulation.

Sub-topics in the section	GDPR	DPD

Given in Article	3	4

When processor or controller is established in the Union, the Regulation/ Directive will apply if: (DPD is silent on location of processors )	1. Processing is of personal data 2. Processing is in "context of activities" of the establishment 3. Processing may or may not take place in the Union	Processing is of personal data.
When processor or controller is not established in Union, the Regulation/Directive will apply if: (DPD is silent on location of processors )	1. Data subjects are in the Union; and 2. Processing activity is related to: I. Offering of goods or services; or II. Monitoring their behavior within Union 3. Will apply when Member State law is applicable to that place by the virtue of public international law	1. Like GDPR the DPD mentions that national law should be applicable to that place by virtue of public international law; Or 2. If the equipment for processing is situated on Member state territory unless it is used only for purpose of transit.

4.2 Material Scope

The Recital under GDPR explains that data protection is not an absolute right. Principle of proportionality has been adopted to respect other fundamental rights.

Sub-topics in the section	GDPR	DPD

Given in Article	2	3
Applies to	Processing of personal data Processing is by automated means, wholly or partially When processing is not by automated means, the personal data should form or are intended to form a part of filing system	Same
Does not apply to	Processing of personal data: 1. For activities which lie outside scope of Union law 2. By Member State under Chapter 2 Title V of TEU 3. By natural person in course of purely personal or household activity 4. By competent authorities in relation to criminal offences and penalties and threats to public security 5. Under Regulation (EC) No 45/2001. This needs to be adapted for consistency with GDPR 6. Which should not prejudice the E commerce Directive 2000/31/EC especially the liability rules of intermediary service providers	The provisions in DPD are similar to GDPR. In addition to Title V, the DPD did not apply to Title VI of TEU. DPD doesn't mention Regulation (EC) No 45/2001 or the E commerce Directive 2000/31/EC.

4.3 Definitions

GDPR incorporates 26 definitions as compared to 8 definitions under DPD. There are 18 new definitions in GDPR. Some definitions have been expanded.

Sub-topics in the section	GDPR	DPD

Given in Article	4	2
New Definitions under GDPR	1. Restriction of processing 2. Profiling 3. Pseudonymisation 4. Personal data breach 5. Genetic data 6. Biometric data 7. Data concerning health 8. Main establishment 9. Representative 10. Enterprise 11. Group of undertakings 12. Binding corporate rules 13. Supervisory authority 14. Supervisory authority concerned 15. Cross border processing 16. Relevant and reasoned objection 17. Information society service 18. International organizations
2 definitions that have been expanded under GDPR	1. Personal data 2. Consent
6 Definitions which have remained same in GDPR and DPD	1. Processing of personal data 2. Personal data filing system 3. Controller 4. Processor 5. Third party recipient

4.3.1 Expanded definition of personal data

Both DPD and GDPR apply to 'personal data'. The GDPR gives an expanded definition of 'personal data'. Recital 30 gives example of an online identifier such as IP addresses.

Sub-topics in the section	GDPR	DPD

Given in Article	4(1)	2(a)
New term added in the definition	A new term " online identifier" has been added. Example of online identifier is given under Recital 30. An IP address is one such example.

4.3.2 Expanded definition of consent

Valid consent must be given by the data subject. The definition of valid consent has been added under GDPR. Recital 32 further explains that consent can be given by "means of a written statement including electronic means or an oral statement". For example, ticking a box on websites signifies acceptance of processing while "pre ticked boxes, silence or inactivity" do not constitute consent.

Sub-topics in the section	GDPR	DPD

Given in Article	4(11)	2(h)
Term added in GDPR	Consent must be unambiguous, freely given, specific and informed.	The word "unambiguous" is not contained in DPD.
Means of signifying assent to processing own data	Assent can be given by a statement or by clear affirmative action signifying assent to processing.	DPD merely mentions that freely given, specific and informed consent signifies assent.

4.4 Conditions for consent

GDPR lays down detailed provisions for valid consent. Such provisions are not given in DPD.

Sub-topics in the section	GDPR	DPD

Article	7
Obligation of controller	Must demonstrate consent has been given
Presentation of written declaration of consent	It should be in a clearly distinguishable, intelligible and easily accessible form. Language should be clear and plain.
If declaration or any part of it infringes on Regulation	Declaration will be non-binding.
Right of data subject	To withdraw consent at any time.
Right of data subject	If consent is withdrawn, it will not make processing done earlier unlawful.
For assessing whether consent is freely given	Must consider whether performance of contract or provision of service is made conditional on consent to processing of data not necessary for performance of contract.

4.5 Conditions applicable to child's consent in relation to information society services

This article prescribes an age limit for making processing lawful when information society services (direct online service) are offered directly to a child.

Sub Topics in the Section	GDPR	DPD

Given in Article	8
Conditions for valid consent in this case	If child is at least 16 years old his consent is valid. If child is below 16 years consent must be obtained from holder of parental responsibility over the child.
Age relaxation can be given when	Member States provides a law lowering the age. Age cannot be lowered below 13 years.
Controller's responsibility	Verify who has given the consent
Exceptions	This law will not affect: General contract law of member states; Effect of contract law on a child;

4.6 Processing of special categories of personal data

Like the DPD, the GDPR spells out the data that is considered sensitive and the conditions under which this data can be processed. Two new categories of special data, "genetic data" and "biometric data", have been added to the list in the GDPR.

Sub Topics in the Section	GDPR	DPD

Article	9	8
Categories of data considered sensitive	Racial or ethnic origin	Same
	Political opinions	Same
	Religious or philosophical beliefs	Same
	Trade union membership	Same
	Health or sex life or sexual orientation	Same
	Genetic data or Biometric data uniquely identifying natural person
Circumstances in which processing of personal data may take place	If there is explicit consent of data subject provided Member State laws do not prohibit such processing
	Necessary for carrying out specific rights of controller or data subject	Under DPD these rights can be for employment. The GDPR adds social security and social protection to this list. These rights are to be authorized by Member state or Union. The GDPR adds "Collective agreements" to this.
	In the vital interest of data subject who cannot give consent due to physical or legal causes.	Same
	In the vital interest of a Natural person physically or legally incapable of giving consent	Same
	For legitimate activities carried on by not-for profit-bodies for political, philosophical or trade union aims subject to certain conditions.	Same
	When personal data is made public by data subject	Same
	For establishment, exercise of defense of legal claims or for courts	Same
	For substantial public interest in accordance with Member State or Union law
	Is necessary for: Preventive or occupational medicine Assessing working capacity of employee Medical diagnosis Healthcare or social care services Contract with health professional
	Is necessary in Public interest in the area of public health
	For public interest, scientific or historical research or statistical purpose
Data for preventive or occupational medicine, medical diagnosis etc. can be processed when:	Data is processed by or under responsibility of a professional under obligation of professional secrecy as state in law	Here the processing is done by health professional under obligation of professional secrecy

4.7 Principles relating to processing of personal data

The principles set out in GDPR are similar to the ones under DPD. Some changes have been introduced. Accountability of the controller has been specifically given under GDPR.

Sub-topics in this section	GDPR	DPD

Given in Article	5	6
Lawfulness, fairness, transparency	Processing must be Lawful, fair and transparent	Does not mention transparent
Purpose limitation	Data must be specified, explicit and legitimate.	Same
Purpose limitation	Processing for achieving public interest, scientific or historical research or statistical purpose is not to be considered incompatible with initial purpose.	Same
Data minimization	Processing is adequate, relevant and limited to what is necessary	Same
Accuracy	Data is accurate, up to date, erased or rectified without delay	Same
Storage limitation	Data is to be stored in a way that data subject can be identified for no longer than is necessary for purpose of processing	Same
	Data can be stored for longer periods when it is processed solely in public interest, scientific or historical research or statistical purpose	Same However, public interest is not mentioned.
	There must be appropriate technical and organizational measures to safeguard rights and freedoms	Same Additionally, it specifically states that Member States must lay down appropriate safeguards
Integrity and confidentiality	Manner of processing must: Ensure security of personal data, Protection against unlawful processing and accidental loss, destruction or damage	Not mentioned
Accountability	Controller is responsible for and must demonstrate compliance with all of the above.	DPD states it is for the controller to ensure compliance with this Article. Unlike GDPR, DPD doesn't specifically state the responsibility of controller for demonstrating compliance.

4.8 Lawfulness of processing

The conditions for "lawfulness of processing" under DPD have been retained in the GDPR with certain modifications allowing flexibility for member states to introduce specific provisions in public interest or under a legal obligation. It should be noted that protection given to child's data and rights and freedoms of data subject should not be prejudiced. Additionally, a non-exhaustive list has been laid down in the GDPR for determining if processing is permissible in situations where the new purpose of processing is different from original purpose.

Sub Topics in the Section	GDPR	DPD

Given in Article	6	7
Processing is lawful when :	If at least one of the principles applies: Data subject has given consent to processing for specific purpose(s).	Same However it mentions "unambiguous" consent.
	Processing is necessary for performance of contract to which data subject is party or at request of data subject before entering into a contract	Same
	Processing is necessary for controller's compliance with legal obligation.	Same
	Is necessary for legitimate interests pursued by controller or by third party subject to exceptions (should not override rights and freedoms of data subject and protections given to child's data.)	Same
	It is necessary for performance of task carried out in public interest or for exercise of official authority vested in controller	Same It additionally mentions third party: "…exercise of official authority vested in controller or in a third party to whom data are disclosed"
	For protections of vital interest of data subject or another natural person	Same Does not mention natural person.
Member States may introduce specific provisions when:	When processing is necessary for compliance with a legal obligation or to protect public interest
	Basis for processing for shall be laid down by: Union law or Member State law
If processing is done for purpose other than for which data is collected and is without data subject's consent or is not collected under law:
To determine if processing for another purpose is compatible with the original purpose	Controller shall take into account following factors:
	Link between purposes for which data was collected and the other purpose
	Context in which personal data have been collected
	Nature of personal data
	Possible consequences of other purpose
	Existence of appropriate safeguards

4.9 Processing which does not require identification:

This article lays down the conditions under which the controller is exempted from gathering additional data in order to identify a data subject for the purpose of complying with this Regulation. If the controller is able to demonstrate that identification is not possible, the data subject is to be informed if possible.

Sub Topics in the Section	GDPR	DPD

Given in Article	11
Conditions under which the controller is not obliged to maintain process or acquire additional information to identify data subject	If purpose for processing doesn't not require identification of data subject by the controller
Consequence of not maintaining the data	Art 15 to 20 shall not apply provided controller is able to demonstrate its inability to identify the data subject
Exception to above consequence will apply when :	Data subject provides additional information enabling identification

4.10 Rights of the data subject

The General Data Protection Rules (GDPR) confers 8 rights upon the data subject.These rights are to be honored by the controller:-

1. Right to be informed

2. Right of access

3. Right to rectification

4. Right to erasure

5. Right to restrict processing

6. Right to data portability

7. Right to object

8. Rights in relation to automated decision making and profiling

4.10.1 Right to be informed

The controller must provide information to the data subject in cases where personal data has not been obtained from the data subject. A number of exemptions have been listed. Additionally, GDPR lays down the time period within which the information has to be provided.

Sub Topics in the Section	GDPR	DPD

Given in Article	14	10
Type of information to be provided	Identity and contact details of the controller or controller's representative	Same
	Contact details of the data protection officer
	Purpose and legal basis for processing	Purpose of processing
	Recipients or categories of recipients of personal data	Same
	Intention to transfer data to third country or international organization and Information regarding adequacy decision or suitable safeguards or Binding Corporate Rules or derogations. This includes means to obtain a copy of these as well as information on place of availability.
Additional information to be provided by controller to ensure fair and transparent processing	Storage period of personal data and criteria for determining the period
	Legitimate interests pursued by controller or third party
	Existence of data subject's rights with regard to access or rectification or erasure of personal data, automated decision making
	Where applicable, existence of right to withdraw consent
Time period within which information is to be provided	Information to be given within a reasonable period, latest within one month.
	To be provided latest at the time of first communication to data subject, if personal data are to be used for communication with data subject
	In case of intended disclosure to another recipient , at the latest when personal data are first disclosed.
	If processing is intended for a new purpose other than original purpose, information to be provided prior to processing on new purpose.
Situations in which exceptions are applicable	Data subject already has information	Same
	Provision of information involves disproportionate effort or is impossible or renders impossible or seriously impairs achievement of objective of processing. This is particularly with respect to processing for archiving purposes in public interest, scientific or historical research or statistical purpose. However controller must take measures to protect data subject's rights and freedom and legitimate interests including make information public.	Provision involves impossible or disproportionate effort, in particular where processing is for historical or scientific research. However, appropriate safeguards must be provided by Member States.
	Obtaining or disclosure is mandatory under Union or member law and it provides protection to data subject's legitimate interests	Where law expressly lays down recording or disclosure provided appropriate safeguards are provided by Member States. This is particularly applicable to processing for scientific or historical research.
	Confidentiality of data mandated by professional secrecy under Union or Member State law

4.10.2 Right to access

Both Data Protection Directive (DPD) and General Data Protection Rules (GDPR) confer right to access information regarding personal data on the data subject.

CJEU in YS V. Minister voor Immigrate Integratie en Asiel stated that it is the data subject's right "to be aware of and verify the lawfulness of the processing".

Sub-topics in the section	GDPR	DPD

Given in Article	15	12
Data subject has the right to know about:	Purpose of processing	Same
	Categories of processing the data	Same
	Recipients or categories to whom data are disclosed	Same
	Retention period of the data and criteria for this
	Existence of right to request erasure, rectification or restriction of processing
	Right to lodge complaint with supervisory authority
	Knowledge about source of data
	To know about any significant and envisaged consequences of processing for the data subject
	Existence of automated decision making and logic involved	Same
In case of data transfer to third country	Right to be informed about the safeguards
Controller's obligation	To provide a copy of data undergoing processing. Reasonable fee based on administrative costs can be charged for this.

4.10.3 Right to rectification

GDPR and DPD both give the data subject the right to rectify their personal data. Under the GDPR the data subject can complete the incomplete data by giving a supplementary statement.

Sub-topics in the section	GDPR	DPD

Given in Article	16	12(b)
Right can be exercised when:		Processing does not comply with the Directive i.e. damage is caused due to unlawful processing (Recital 55) OR
Right can be exercised when:	When data is incomplete	When data is incomplete or inaccurate
Obligations of controller	To enforce the right without undue delay
Obligation of controller to give notification when data is disclosed to third party	Given under Art 19 Request of erasure of personal data to be communicated to each recipient of such data	Given under Article 12(c) Request must be communicated to third parties
	It should not involve an impossible or disproportionate effort	Same

4.10.4 Right to erasure

This is also referred to as the "right to be forgotten". It empowers the individual to erase personal data under certain circumstances. The data subject can request the controller to remove the data for attaining this purpose.

Sub-topics in the section	GDPR	DPD

Given in Article	17	12(b)
Obligation of the controller	To erase the data without undue delay
Conditions under which the right can be exercised		When processing does not comply with the Directive i.e. damage is caused due to unlawful processing (Recital 55) OR When data is incomplete or inaccurate
	Personal data is no longer necessary for the purpose for which it was collected or processed
	Data Subject withdraws consent for processing
	Data subject objects to processing and there are no overriding legitimate grounds for processing
	Data subject objects to processing for direct marketing purpose
	Personal data has been unlawfully processed
	When personal data has to be erased under a legal obligation of Union or member State law
	When personal data has been collected in offer of information society services to a child
Condition of processing under which request to erasure shall not be granted	For exercising right of freedom of expression and information
	Processing is done under Union or Member State law in public interest or exercise of official authority vested in controller
	Done for public interest in public health
	For public interest, scientific or historical research or statistical purpose.
	For establishment, exercise or defense of legal claims.
Controller's obligations when personal data has been made public	Controller to take reasonable steps to inform controllers who are processing the data, of the request of erasure. All links, copy or replication of personal data to be erased. Technology available and cost of implementation to be taken into account.
Notification when data is disclosed to third party	Given under obligation of controller under Art 19: Request of erasure of personal data to be communicated to each recipient of such data	Given under obligation of controller under 12(c) : Request must be communicated to third parties
Notification when data is disclosed to third party	It should not involve an impossible or disproportionate effort	Same

4.10.5 Right to restrict processing

While DPD provided for "blocking", the GDPR strengthened this right by specifically conferring the " Right to Restrict Processing" upon the data subject. This Article gives data subject the right to restrict processing under certain conditions. Recital 67 explains that these methods could include steps like removing published data from website or temporarily moving the data to another processing system.

Sub-topics in the section	GDPR	DPD

Given in Article	18	12(b)
About this right	Data subject can restrict processing of data	Data subject is allowed to erase, rectify or block processing of personal data.
Conditions under which the right can be exercised	When accuracy of personal data is contested	Besides accuracy, the DPD also mentions "incomplete nature of data" as grounds for exercising this right.
	When processing is unlawful and data subject opposes erasure and requests restriction of data use
	When data is no longer needed by controller but is required by data subject for establishment, exercise or defense of legal claims.
	Data subject objects to processing and the verification by controller of compelling legitimate grounds for processing is ongoing
Consequences of this enforcement of this right	Controller can store data but not process it
	Processing can be done only with the data subject's consent; or
	Processing can be done for establishment exercise or defense of legal claims; or
	Processing can be done for protecting rights of another natural or legal person ;or
	It can be done in public interest of Union or Member State.
Obligations of controller under Art 18	The controller must inform the data subject before the restrictions are lifted.
Obligations of controller under Art 19	Inform each recipient of personal data about the restriction.
	This obligation need not be performed if it is impossible to do so or it involved disproportionate effort.
	Inform data subject about the recipients when requested by the data subject.

4.10.6 Right to data portability

This right empowers the data subject to receive personal data from one controller and transfer it to another. This gives the data subject more control over his or her own data. The controller cannot hinder this right when the following conditions are met.

Sub-topics in the section	GDPR	DPD

Given in article	20
Conditions for data transmission	The data must have been provided to the controller by data subject himself; and
	Processing is based on: Consent; or For performance of contract; and is carried out by automated means
	Data transfer must be technically feasible
Format of personal data	It should be in a: Structured Commonly-used Machine readable format
Time and cost for data transfer	Given in Art 12(3) Should be free of charge Information to be provided within one month. Further extension by two months permissible under certain circumstances.
Circumstance under which this Right cannot be exercised	When the exercise of the Right prejudices rights and freedom of another individual
	When processing is necessarily carried out in public interest
	When processing is necessarily done in exercise of official authority vested in controller
	When this Right adversely affects the "Right to be forgotten"

4.10.7 Right to Object

Both DPD and GDPR confer upon the data subject the right to object to processing on a number of grounds. The GDPR strengthens this right . Under GDPR, there is a visible shift from the data subject to the controller as far as the burden of showing " compelling legitimate grounds" is concerned. Under the DPD, when processing is undertaken in public interest or in exercise of official authority or in legitimate interests of third party or controller, the data subject not only has to show existence of compelling legitimate grounds but also that objection is justified. On the other hand, GDPR spares the data subject from this exercise and instead places the onus on the controller of demonstrating that "compelling legitimate grounds" exist such that these grounds override the interests, rights and freedom of the data subject.

GDPR also provides a new ground for objecting to processing. The data subject can object to processing when it is for scientific or historical research or statistical purpose unless such processing is necessary in public interest.

Under the GDPR the data subject must be informed of this right "clearly and separately" and "at the time of first communication with data subject" when processing is done in public interest/exercise of official authority/legitimate interest of third party or controller or for direct marketing purpose. This right can be exercised by automated means in case of information society service.

The DPD also provides that the data subject must be informed of this right if the controller anticipates processing for direct marketing or disclosure of data to third party. It specifically states that this right is to be offered "free of charge". Additionally, it places responsibility upon the Member States to ensure that data subjects are aware of this right.

Sub-topics in the section	GDPR	DPD

Given in Article	21	14
Conditions under which the right can be exercised during processing	When performance of task is carried out in public interest or in exercise of official authority vested in controller. (Art 6(1)(e)) Exception: If controller demonstrates processing is for compelling legitimate grounds which override interests of data subject For establishment, exercise or defense of legal claims.	Grounds are same but the data subject also has to show existence of compelling legitimate grounds. Processing will cease if objection is justified. Exceptions: Unless provided by national legislation the data subject can object on this ground.
	For legitimate interests of controller or third party (Art 6(1)(f)) Exception: 1. If controller demonstrates processing is for compelling legitimate grounds that override interests of data subject. 2. For establishment, exercise or defense of legal claims.	Same as above
	When data is processed for scientific/historical research/ statistical purpose under Art 89(1) Exception: If processing is necessary for public interest
	When personal data is used for marketing purpose. Can object at anytime. No exceptions	Same

4.10.8 Rights in relation to automated individual decision making including profiling

This Article empowers the data subject to challenge automated decisions under certain conditions. This is to protect individuals from decisions taken without human intervention.

Sub-topics in the section	GDPR	DPD

Given in Article	22	15
This right can be exercised when decisions are based:
	Only on automated processing Including profiling; and	Same
	Produce legal effects or have similarly significant effects on data subject	Same
Conditions under which this right will not be guaranteed
	For entering into or performance of contract;	Same
	If Member State or Union law authorizes the decision provided it lays down suitable measures for safeguarding data subject's rights, freedoms and legitimate interests; Or	Same
	When decision is based on data subject's explicit consent.
Controller's obligation	Enforce measures to safeguard rights and freedom and interests
Controller's obligation	Ensure data subject can obtain human intervention, express his point of view, challenge decisions
Automated decision making will not apply when:	"Special categories of personal data" are to be processed However, if the data subject gives his explicit consent or such processing serves substantial public interest then the restriction can be waived.
Automated decision making will not apply when:	Concerns a child

4.11 Security and Accountability

4.11.1 Data protection by design and default

This is another new concept under GDPR. It is a general obligation on the controller to incorporate effective data protection in internal policies and implementation measures. Measures include: minimization of processing, pseudonymisation, transparency while processing, allowing data subjects to monitor data processing etc. The implementation of organizational and technical measures is essential to demonstrate compliance with Regulation.

Sub-topics in the section	GDPR	DPD

Article	25
Responsibility of controller when determining means of processing and at the time of processing	Implementation of appropriate technical and organizational measures for data protection
	Ensure that by default only personal data necessary for purpose of processing is processed
Means of demonstrating compliance with this Article	Approved certification mechanism may be used. Data minimization Transparency etc.

4.11.2 Security of personal data

Security of processing is mentioned in the GDPR under Article 32. The controller and processor must implement technical and organizational measures to ensure data security. These may include pseudonymisation, encryption, ensuring confidentiality, restoring availability and access to personal data, regularly testing etc. Compliance with the code may be demonstrated by adherence to Code of conduct and certification mechanism. Further, all processing which is done by a natural person acting under authority of controller or processor can be done only under instructions from the controller.

4.11.3 Notification of personal data breach

This Article provides the procedure for communicating the personal data breach to supervisory authority. If the breach is not likely to result in risk to rights and freedoms of natural persons, then the controller is not required to notify the supervisory authority.

Sub-topics in the section	GDPR	DPD

Given in Article	33
Responsibility of controller	Report personal data breach to supervisory authority after being aware of it
Time limit for reporting data breach	Must be reported no later than 72 hours
In case of delay in reporting	Reasons to be stated
Responsibility of processor	Notify the controller after being aware of breach
Description of notification	Describe nature of personal data
	Name contact details of data protection officer
	Likely consequences of personal data breach
	Measures to be taken or proposed to be taken by controller to address the breach or mitigate its possible effect
When information cannot be provided at same time	Provide it in phases without further undue delay
For verification of compliance	Controller has to document any personal data breach. It must contain Facts , effects and remedial action taken

4.11.4 Communication of personal data breach to the data subject

Not only is the supervisory authority to be notified, but data subjects are also to be informed about personal data breaches without undue delay under certain conditions.

Sub-topics in the section	GDPR	DPD

Given in Article	34
Conditions under which controller is to communicate the breach to data subject	When breach is likely to cause high risk to rights and freedoms of natural persons
Nature of communication	Must be in a clear and plain language. Must describe the nature of breach. Must Contain at least: Name contact details of data protection officer Likely consequences of personal data breach Measures to be taken or proposed to be taken by controller to address the breach or mitigate its possible effect
Condition under which communication will not be required	If controller has implemented appropriate technical and organizational measures and these were applied to the affected data. E.g.: encryption
	Subsequent measures have been taken by controller to ensure there is no high risk
	If communication involves disproportionate effort. Public communication or similar measures can be undertaken under such circumstances.
Role of supervisory authority	In case of likelihood of high risk, the authority may require the controller to communicate the breach if the controller has not already done so.

4.11.5 Data protection impact assessment

This is also known as Privacy Impact Assessment. While DPD provides general obligation to notify the processing to supervisory authorities, the GDPR, taking into account the need for more protection of personal data, has replaced the notification process by different set of mechanisms.

To serve the above purpose, the data protection impact assessment (DPIA) has been provided under this Article.

Sub-topics in the section	GDPR	DPD

Given in Article	35
When to carry out assessment	When new technology is used; and Processing is likely to result in high risk to rights and freedoms of natural persons
	Automated processing including profiling involving systematic and extensive evaluation of personal aspects of natural persons; and When decisions based on such processing produce legal effects
	Large scale processing of special categories of data or personal data relating to criminal convictions and offences
	Large scale systematic monitoring of publicly accessible area
Type of information contained in assessment	Description of processing operations and purpose
	Assessment of necessity and proportionality of processing operations
	Assessment of risks to individuals
	Measures to address risks and demonstration of compliance with Regulation
Sub-topics in the section	GDPR	DPD

Topic	Prior Consultation
Given in Article	36
When should controller consult supervisory authority	Prior to processing; and DPIA indicates high risk; and In absence of risk mitigation measures by controller

Data protection officer

GDPR mandates that a person with expert knowledge of data protection law and practice is appointed for helping the controller or processor to comply with the data protections laws. A single data protection officer (DPO) may be appointed by a group of undertakings or where controller or processor is a public authority or body.The DPO must be accessible from each establishment.

Sub Topics in the Section	GDPR	DPD

Article	37
Situations in which DPO must be appointed	When processing is carried out by public authority or body. Note: Courts acting in judicial capacity are excluded.
	Core activity involves processing which requires regular and systematic monitoring of data subjects on large scale; or
	Core activity involves processing of large scale special categories of data and criminal convictions and offences

Position of Data Protection Officer

The DPO must directly report to the highest management level of the controller or processor. Data subjects may contact the DPO in case of problems related to processing and exercise of rights.

Sub Topics in the Section	GDPR	DPD

Article	38
Responsibility of controller and processor	Ensure DPO is involved properly and in timely manner
	Provide DPO with support, resources and access to personal data and processing operations
	Not dismiss or penalize DPO for performing his task.
	Ensure independence of working and not give instruction to DPO

Tasks of Data Protection officer

The DPO must be involved in all matters concerning data protection. He is expected to act independently and advice the controllers and processors to facilitate the establishment's compliance with Regulations.


Sub Topics in the Section	GDPR	DPD

Article	39
Tasks	Inform and advise the controller or processor and employees over data protection laws
	Monitor compliance with data protection laws. Includes assigning responsibilities, awareness- raising, staff training and audits
	Advice and monitor performance
	Cooperate with supervisory authority
	Act as point of contact for supervisory authority for processing, prior consultation and consultation on other matter

4.11.6 European Data Protection Board

For consistent application of the Regulation, the GDPR envisages a Board that would replace the Working Party on Protection of Individuals With Regard to Processing of Personal Data established under the DPD. This Regulation confers legal personality on the Board.

Sub Topics in the Section	GDPR	DPD

Article	68
Represented by	Chair
Composition of the Board	Head of one supervisory authority of each Member State and European Data Protection Supervisor or of their representatives. Joint representative can be appointed where Member State has more than one supervisory authority.
Role of Commission	Right to participate in activities and meetings of the Board without voting rights. Commission to designate a representative for this.
Functions of the Board	Consistent application of Regulation
	Advise Commission of level of protection in third countries or international organizations
	Promote cooperation of supervisory authorities
	Board is to act independently

4.11.7 Supervisory Authority

GDPR lays down detailed provisions on supervisory authorities, defining their functions, independence, appointment of members, establishment rules, competence, competence of lead supervisory authority, tasks, powers and activity reports. Such elaborate provisions are absent in DPD.

Sub-topics in this section	GDPR	DPD

Given in Article	Chapter VI, Article 51 -59	28

4.12 Processor

The Article spells out the obligations of a processor and conditions under which other processors can be involved.

Sub Topics in the Section	GDPR	DPD

Article	28
What kind of processors can be used by controller	● Those which provide sufficient guarantees to implement appropriate technical and organizational measures ● Those which comply with Regulation and Rights
Obligations of processor in case of addition or replacement of processor	● Not engage another processor without controller's authorization ● In case of general written authorization inform the controller
Processing shall be governed by	Contract or legal act under Union or Member State law.
Elements of Contract	● Is binding on processor ● Sets out subject matter and duration of processing ● Nature of processing ● Type of personal data ● Categories of data subjects ● Obligations and Rights of the controller
Obligations of processor under contract or legal act	Processor shall process under instructions from controller unless permitted under law itself. Controller is to be informed in the latter case.
	Ensures that persons authorized to process have committed themselves to confidentiality
	Processor to undertake all data security measures (mentioned under Art 32)
	Enforces conditions on engaging another processor
	Assists the controller by appropriate technical and organizational measures
	Assists controller in compliance with Art 32 to 36
	Delete or return all personal data to controller at the choice of controller at the end of processing
	Make information available to controller for demonstrating compliance with obligations. Contribute to audits, inspections etc. Inform the controller if it believes that an instruction infringes the regulation or law.
Conditions under which a processor can engage another processor	● Same data protection obligations will be applicable to other processor. ● If other processor fails to fulfill data protection obligations, initial processor shall remain fully liable to controller for such performance.

4.13 Records of processing activities

The controller or processor must maintain records of processing activities to demonstrate compliance with the Regulation. They are obliged to cooperate with and make record available to the supervisory authority upon request. DPD does not contain similar obligations.

Sub Topics in the Section	GDPR	DPD

Article	30
Obligation of controller or controller's representative	Maintain a record of processing activities
Information to be contained in the record	Name and contact details of: ● Controller /joint controller / controller's representatives ● Data protection officer
	Purpose of processing
	Categories of data subjects and categories of personal data
	Categories of recipients to whom data has been or will be disclosed
	Transfers of personal data to third party, identification of third party, documentation of suitable safeguards
	Expected time duration for erasure of different categories of data
	Technical and organizational security measures
Obligation of processor	Maintain a record of processing activities carried out on behalf of controller
Record maintained by processor shall contain information such as:	Name and contact details of: ● Processor /processor's representative ● Controller /controller's representative ● Data protection officer
	Categories of processing
	Data transfer to third party Identification of third party Documentation of safeguards
	Technical and organizational security measures
Form in which record is to be maintained	In writing and electronic form
Conditions under which exemption will apply	● Organizations employing fewer than 250 employees are exempted; ● Processing should not cause risk to rights and freedoms of data subjects ● Processing should not be occasional ● Processing should not include special categories of data

4.14 Code of Conduct

These mechanisms have been provided under GDPR to demonstrate compliance with the Regulation. This is important as the GDPR ( under Art 83 ) provides that adherence to code of conduct shall be one of the factors taken into account for calculating administrative fines. This is not an obligatory provision.

Sub Topics in the Section	GDPR	DPD

Article	40	27
Who will encourage drawing up of code of conduct	● Member States ● Supervisory Authorities ● Commission. Specific needs of micro, small and medium enterprises to be taken into account.	● Member States ● Commissions Does not mention the rest
Who may prepare amend or extend code of conduct	Associations and other bodies representing categories of controller or processors
Information contained in the code	Fair and transparent processing
	Legitimate interests of controller
	Collection of personal data
	Pseudonymisation
	Information to public and data subjects
	Exercise of rights of data subject
	Information provided to and protection of children and manner in which consent of holders of parental responsibility is obtained
	Measures under: ● Data protection by design and default ● Controller responsibilities ● Security of processing
	Notification of data breach to authorities and communication of same to data subjects
	Data transfer to third party
	Dispute resolution procedures between controllers and data subjects
	Mechanisms for mandatory monitoring
Mandatory monitoring	Code of conduct containing the above information enables mandatory monitoring of compliance by body accredited by supervisory authority. (Art 41)

4.15 Certification

Like the code of conduct, Certification is a voluntary mechanism that demonstrates compliance with the Regulation. Establishment of data protection certification mechanism and data protection seals and marks shall be encouraged by Member States, supervisory authorities, Boards and Commission. As in case of code of conduct, specific needs of micro, small and medium sized enterprise ought to be taken into account. DPD does not mention such mechanisms.

Sub Topics in the Section	GDPR	DPD

Article	42
Who will issue the certificate	Certification bodies or competent supervisory authority on basis of approved criteria.
Time period during which certification shall be issued	Maximum period of three years. Can be renewed under same conditions.
Who accredits certification bodies	Competent Supervisory bodies or National accreditation body.
When can accreditation be revoked	When conditions of accreditation are not or no longer met. OR Where actions taken by certification body infringe this Regulation.
Who can revoke	Competent supervisory authority or national accreditation body

4.16 Data Transfer

4.16.1 Transfers of personal data to third countries or international organizations

Chapter V lays down the conditions with which the data controller must comply in order to transfer data for the purpose of processing outside of the EU to third countries or international organizations. The chapter also stipulates conditions that must be complied with for onward transfers from the third country or international organization.

4.16.2 Transfer on the basis of an adequacy decision

Under GDPR, transfer of data can take place after the Commission decides whether the third country, territory, specified sector within that third country or international organization ensures adequate level of data protection. This is called adequacy decision. A list of countries or international organizations which ensure adequate data protection shall be published in the Official Journal of the European Union and on the website by the Commission. Once data transfer conditions are found to be compliant with the Regulation, no specific authorization would be required for data transfer from the supervisory authorities. The commission would decide this by means of an "Implementing Act" specifying a mechanism for periodic review, its territorial and sectoral application and identification of supervisory authorities. Decisions of Commission taken under Art 25(6) of DPD shall remain in force. DPD also provides parameters for the same.

Sub-topics in this section	GDPR	DPD

Given in article	45	25
Conditions apply when transfers take place to	Third country or international organization	International organization not mentioned.
Functions of the commission	Take adequacy decisions	Same
	Review the decision periodically every four years
	Monitor developments on ongoing basis
	Repeal, amend or suspend decision
		Inform Member States if third country doesn't ensure adequate level of protection. Similarly, member state has to inform the Commission.
Functions of Member State		Inform Commission if third country doesn't ensure adequate level of protection.
		Take measures to comply with Commission's decisions
		Prevent data transfer if Commission finds absence of adequate level of protection.
Factors, with respect to third country or international organization, to be considered while deciding adequacy of safeguards	Rule of law, human rights, fundamental freedoms, access of public authorities to personal data, data protection rules, rules for onward transfer of personal data to third country or international organization etc.	Circumstances surrounding data transfer operations: nature of data; purpose and duration of processing operation; rule of law, professional rules and security measures in third country; country of origin and final destination; professional rules and security measures;
	Functioning of independent supervisory authorities, their powers of enforcing compliance with data protection rules and powers to assist and advise data subject to exercise their rights.
	International commitments entered into. Obligations under legally binding conventions.	Same
When adequate level of protection no longer ensues	The Commission, to the extent necessary: repeal, amend or suspend the decision. This is to be done by the means of an implementing act. No retroactive effect to take place	The member state will have to suspend data transfer if Commission finds absence of adequate level of protection.
When adequate level of protection no longer ensues	Commission to enter into consultation with the third country or international organization to remedy the situation	Same

4.16.3 Transfers subject to appropriate safeguards

This article provides for a situation when the Commission takes no decision. (Mentioned above under Transfer on the basis of an adequacy decision). In this case, the controller or processor can transfer data to third country or international organization subject to certain conditions. Specific authorization from supervisory authorities is not required in this context. Procedure for the same has been mentioned.

Sub-topics in this section	GDPR	DPD

Given in article	46
When can data transfer take place	When appropriate safeguards are provided by the controller or processor; AND On condition that data subject enjoys enforceable rights and effective legal remedies for data safety.
Conditions to be fulfilled for providing appropriate safeguards without specific authorization from supervisory authority	Existence of legally binding and enforceable instrument between public bodies or authorities
	Existence of Binding Corporate Rules
	Adoption of Standard Protection Clauses adopted by the Commission
	Adoption of Standard data protection clauses by supervisory authorities and approved by Commission.
	Approved code of conduct along with binding and enforceable commitments of controller or processor in third country to apply appropriate safeguards and data subject's rights OR Approved certification mechanism along with binding and enforceable commitments of controller or processor in third country to apply appropriate safeguards and data subject's rights.
Conditions to be fulfilled for providing appropriate safeguards subject to authorization from competent authority	Existence of contractual clauses between: Controller or Processor and Controller, Processor or recipient of personal data (third party)
	Provisions inserted in administrative arrangements between public authorities or bodies. Provisions to contain enforceable and effective data subject rights.
	Consistency mechanism to be applied by supervisory authority
Unless amended, replaced or repealed, authorization to transfer given under DPD will remain valid when:	Third country doesn't ensure adequate level of protection but controller adduces adequate safeguards; or Commission decides that standard contractual clauses offer sufficient safeguards

4.16.4 Binding Corporate Rules

These are agreements that govern transfers between organizations within a corporate group

Sub-topics in this section	GDPR	DPD

Given in Article	47
Elements of Binding Corporate Rules	Legally binding
	Apply to and are enforced by every member of group of undertakings or group of enterprises engaged in joint economic activity. Includes employees
	Expressly confer enforceable rights on data subject over processing of personal data
What do they specify	Structure and contact details of group of undertakings
	Data transfers or set of transfers including categories of personal data , type of processing, type of data subjects affected, identification of third countries
	Legally binding nature
	Application of general data protection principles
	Rights of data subjects Means to exercise those right
	How the information on BCR is provided to data subjects
	Tasks of data protection officer etc.
	Complaint procedure
	Mechanisms within the group of undertakings, group of enterprises for ensuring verification of compliance with BCR. Eg. Data protection audits Results of verification to be available to person in charge of monitoring compliance with BCR and to board of undertaking or Group of enterprises. Should be available upon request to competent supervisory authority
	Mechanism for reporting and recording changes to rules and reporting changes to supervisory authority
	Cooperation mechanism with supervisory authority
	Data protection training to personnel having access to personal data
Role of Commission	May specify format and procedures for exchange of information between controllers, processors and supervisory authorities for BCR

4.16.5 Transfers or disclosures not authorized by Union law

This Article lays down enforceability of decisions given by judicial and administrative authorities in third countries with regard to transfer or disclosure of personal data.

Sub-topics in this section	GDPR	DPD

Given in Article	48
Article concerns	Transfer of personal data under judgments of courts, tribunals, decision of administrative authorities in third countries.
When can data be transferred or disclosed	International agreement between requesting third country and member state or union. E.g.: mutual legal assistance treaty

4.16.6 Derogations for specific situations

This Article comes into play in the absence of adequacy decision or appropriate safeguards or of binding corporate rules. Conditions for data transfer to a third country or international organization under such situations have been laid down.

Sub-topics in this section	GDPR	DPD

Given in Article	49	26
Conditions under which data transfer can take place	On obtaining Explicit consent of data subject after being informed of possible risks	On obtaining unambiguous consent of data subject to the proposed transfer
	Transfer is necessary for conclusion or performance of contract. The contract should be in the interest of data subject. The contract is between the controller and another natural or legal person.	Contractual conditions are same. DPD also includes implementation of pre contractual measures taken upon data subject's request.
	Transfer is necessary in public interest	Same
	Is necessary for establishment, exercise or defense of legal claims	Same
	To protect vital interest of data subject or of other persons where data subject is physically or legally incapable of giving consent	Includes vital interest of data subject but doesn't include "other person". Condition for consent is also not included.
	Transfer made from register under Union or Member State law to provide information to public and is open to consultation by public or person demonstrating legitimate interest.	Same
Conditions for transfer when even the above specific situations are not applicable	Transfer is not repetitive
	Concerns limited number of data subjects
	Necessary for compelling legitimate interests pursued by controller
	Legitimate interests are not overridden by interests or rights and freedoms of data subject
	Controller has provided suitable safeguards after assessing all circumstances surrounding data transfer
	Controller to inform supervisory authority about the transfer
	Controller to inform data subject of transfer and compelling legitimate interests pursued
		Member may authorize transfer personal data to third country where controller adduces adequate safeguards for protection of privacy and fundamental rights and freedoms of individuals

4.17 International cooperation for protection of personal data

This Article lays down certain steps to be taken by Commissions and supervisory authorities for protection of personal data.

Sub-topics in this section	GDPR	DPD

Given in Article	50
Steps will include	Development of international cooperation mechanisms to facilitate enforcement of legislation for protection of personal data
	Provide international mutual assistance in enforcement of legislation for protection of personal data
	Engage relevant stakeholders for furthering international cooperation
	Promote exchange and documentation of personal data protection legislation and practice

4.18 Remedies, Liability and Compensation

4.18.1 Right to lodge complaint with a supervisory authority

This article gives the data subject the right to seek remedy against unlawful processing of data. GDPR strengthens this right as compared to the one provided under DPD.

Sub-topics in this section	GDPR	DPD

Given in Article	77	28(4)
Right given	Right to lodge complaint	Under GDPR the data subject has been conferred the "right" specifically. This is not so in DPD. DPD merely obliges the supervisory authority to hear claims concerning rights and freedoms.
Who can lodge complaint	Data subject	Any person or association representing that person
Complaint to be lodged before	Supervisory authority in the Member State of habitual residence, place of work or place of infringement	Supervisory authority
When can the complaint be lodged	When processing of personal data relating to data subject allegedly infringes on Regulation	When rights and freedom are to be protected while processing. When national legislative measures to restrict scope of Regulations is adopted and processing is alleged to be unlawful.
Accountability	Complainant to be informed by Supervisory authority on progress and outcome of complaint and judicial remedy to be taken up	Complainant to be informed on outcome of claim or if check on unlawfulness has taken place

4.18.2 Right to an effective judicial remedy against supervisory authority

The concerned Article seeks to make supervisory authorities accountable by bringing proceedings against the authority before the courts. GDPR gives a specific right to the individual. DPD under Article 28(3) merely provides for appeal against decisions of supervisory authority in the courts.

Sub-topics in this section	GDPR	DPD

Given in Article	78 (1)
Who has the right	Every natural or legal person
When can the right be exercised	Against legally binding decision of supervisory authorities concerning the complainant

Sub-topics in this section	GDPR	DPD

Given in Article	78(2)
Who has the right	Data subject
When can the right be exercised	When the competent supervisory authority doesn't handle the complaint Or Doesn't inform data subject about progress / outcome of complaint within 3 months

The jurisdiction of court will extend to the territory of the Member State in which the supervisory authority is established (GDPR Art 78(3)). The supervisory authority is required to forward proceedings to the court if the decision was preceded by the Board's decision in the consistency mechanism. (GDPR 78(4))

4.18.3 Right to effective judicial remedy against a controller or processor

The data subject has been conferred with the right to approach the courts under certain circumstance. The GDPR confers the specific right while DPD provides for judicial remedy without using the word "right".

Sub-topics in this section	GDPR	DPD

Given in	Art 79	Recital 55
Right can be exercised when:	1. Data has been processed; and 2. Processing Results in infringement of rights; and 3. Infringement is due to non compliance of Regulation	Similar provisions provided under DPD: When controller fails to respect the rights of data subjects and national legislation provides a judicial remedy. Processors are not mentioned.
Jurisdiction of the courts	Proceedings can be brought before the courts of Member States wherein: 1. Controller or processor has an establishment Or 2. Data Subject has habitual residence
Right cannot be exercised when	1. The controller or processor is a public authority of Member State And 2. Is exercising its public powers

4.18.4 Right to compensation and liability

GDPR enables a person who has suffered damages to claim compensation as a specific right. DPD merely entitles the person to receive compensation. Although Liability provisions under GDPR and DPD are similar, the liability under GDPR is stricter as compared to DPD. This is because DPD exempts the processor from liability but GDPR does not. For example, DPD imposes liability on controllers only.

Sub-topics in this section	GDPR	DPD

Given in Article	82	23
Who can claim compensation	Any person who has suffered material or non material damage	Similar provisions. But DPD doesn't mention "material or non-material damage" specifically.
Right arises due to	Infringement of Regulation	Same
Right granted	Right to receive compensation	Same
Compensation has to be given by	Controller or processor	Compensation can be claimed only from controller
Liability of controller arises when	Damage is caused by processing due to infringement of regulation	Same
Liability of processor arises when	1. Processor has not complied with directions given to it under Regulation OR 2. Processor has acted outside or contrary to lawful instructions of controller
Exemptions to controller or processor from liability	If there is proof that they are not responsible	Exemption for controller is same
Liability when more than one controller or processor cause damage	Each controller or processor to be held liable for entire damage

4.19 General conditions for imposing administrative fines

GDPR makes provision for imposition of administrative fines by supervisory authorities in case of infringement of Regulation. Such fines should be effective, proportionate and dissuasive. In case of minor infringement, "reprimand may be issued instead of a fine" ^{^[1]}. Means of enforcing accountability of supervisory authority have been provided. If Member state law does not provide for administrative fines, then the fine can be initiated by the supervisory authority and imposed by courts. However, by 25 May 2018, Member States have to adopt laws that comply with this Article.

Sub-topics in this section	GDPR	DPD

Given in Article	83
Who can impose fines	Supervisory Authority
Fines to be issued against	Controllers or Processors
Parameters to be taken into account while determining administrative fines	Nature, gravity and duration of infringement and Nature scope or purpose of processing and Number of data subjects affected and Level of damage suffered
	Intentional or negligent character of infringement
	Action taken by controller or processor to mitigate damage suffered by data subjects
	Degree of responsibility of con controller or processor. Technical and organizational measures implemented to be taken into account.
	Relevant previous infringement
	Degree of cooperation with supervisory authority
	Categories of personal data affected
	Manner in which supervisory authorities came to know of the infringement and Extent to which the controller or processor notified the infringement
	Whether corrective orders of supervisory authority under Art 58(2) have been issue before and complied with
	Adherence to approved code of conduct under Art 40 or approved certification mechanisms under Art 42
	Other aggravating or mitigating factors like financial benefits gained losses avoided etc.
If infringement is intentional or due to negligence of processor or controller	Total amount of administrative fine to not exceed amount specified for gravest infringement
Means checking power of supervisory authority to impose fines	Procedural safeguards under Member State or Union law. Including judicial remedy and due process

Article 83 splits the amount of administrative fines according to obligations infringed by controllers, processors or undertakings. The first set of infringements may lead to imposition of fines up to 10,000,000 EUR or 2% of total worldwide turnover.

Sub-topics in this section	GDPR	DPD

Article	83(4)
Fine imposed	Up to 10,000,000 EUR or in case of undertaking, 2% of total worldwide turnover of preceding financial year, whichever is higher
Infringement of these provisions will cause imposition of fine (Provisions infringed)	Obligations of controller and processor under:
	Art 8 Conditions applicable to child's consent in relation to information society services
	Art 11 Processing which does not require identification
	Art 25 to 39 General obligations , Security of personal data , Data Protection impact assessment and prior consultation
	Art 42 Certification
	Art 43 Certification bodies
	Obligations of certification body under: Art 42 Art 43
	Obligations of monitoring body under: Art 41(4)

Second set of infringements may cause the authority to impose higher fines up to 20,000,000 EUR or 4% of total worldwide turnover.

Sub-topics in this section	GDPR	DPD

Article	83(5)
Fine imposed	Up to 20,000,000 EUR or in case of undertaking, 4% of total worldwide turnover of preceding financial year, whichever is higher
Infringement of provisions that will cause imposition of fine (Provisions infringed)	Basic principles for processing and conditions for consent under:
	Art 5 Principles relating to processing of personal data
	Art 6 Lawfulness of processing
	Art 7 Conditions for consent
	Art 9 Processing of special categories of personal data
	Data subject's rights under: Art 12 to 22
	Transfer of personal data to third country or international organization under: Art 44 to 49
	Obligations under Member State law adopted under Chapter IX
	Non Compliance with supervisory authority's powers under provisions of Art 58:
	Imposition of temporary or definitive limitation including ban on processing (Art 58 (2)(f))
	Suspension of data flows to third countries or international organization (Art 58(2) (j))
	Provide access to premises or data processing equipment and means (Art 58 (1) (f))

4.20 Penalties

Article 84 makes provision for penalties in case of infringement of Regulation.

The penalties must be effective, proportionate and dissuasive.

Sub-topics in this section	GDPR	DPD

Given in Article	84
When will penalty be imposed	In case of infringements that are not subject to administrative fines
Who imposes them	Member State
Responsibility of Member State	To lay down the law and ensure implementation. To notify to the Commission, the law adopted, by 25 May 2018

^{^[1]} Recital 148 , GDPR

For more details visit https://cis-india.org/internet-governance/blog/comparison-of-general-data-protection-regulation-and-data-protection-directive

India WhatsApp Privacy Fight May Affect Multinationals

praskrishna — 2017-02-02T02:28:23Z

The Indian Supreme Court’s review of Facebook Inc.'s and WhatsApp Inc.'s data security practices may lack teeth but also presages a desire for a stronger privacy regime and oversight of multinationals, internet and privacy specialists told Bloomberg BNA.

The article by Nayanima Basu was published by Bloomberg BNA on February 1, 2017. Pranesh Prakash was quoted.

WhatsApp revised its privacy policy in August 2016 to share data with owner Facebook and allow targeted ads and messages from businesses, laying the groundwork for the free messaging service to monetize such data. But a public interest complaint, akin to a class action in the U.S., filed by two Indian students and regulatory inquiries have resulted in India’s top court asking Facebook and WhatsApp about their data protection practices.

The court’s move Jan. 17 to seek the information may make multinational companies jittery, Rahul Khullar, former secretary of commerce for India’s Ministry of Commerce and Industry, told Bloomberg BNA. Although stronger data privacy enforcement is needed, all the high court has done is aggravate Facebook and other large multinationals, he said.

Facebook is the second largest media company in the world with a $367 billion market capitalization, Bloomberg data show. It acquired WhatsApp in 2014 for approximately $18 billion, data show. Facebook didn’t immediately respond to Bloomberg BNA’s e-mail request for comments.

Khullar, who is also the former chairman of the Telecom Regulatory Authority of India, said multinationals need to be more careful in sharing their data because of the “distinction between digital non-commercial data and digitally sensitive data,” he said. A strong national data privacy law would resolve some of these issues, he said.

An U.S. official based at the U.S. Embassy in New Delhi, speaking on background, told Bloomberg BNA that any maneuver that restricts the free flow of data may harm the operations of U.S.-based multinationals and similar companies.

Clarity, Stronger Laws Needed

Some internet and privacy specialists say that Facebook and WhatsApp failed to provide effective data protection under Indian law.

Pranesh Prakash, policy director at the nonprofit digital technologies advocate Centre for Internet and Society, told Bloomberg BNA that Facebook and WhatsApp are in violation of Section 43A of the Information Technology Act that lays out “reasonable security practices and procedures.”

Indian citizens are reaching out to the courts for data protection enforcement because lawmakers have “failed to do so,” he said. That highlights the need for robust data protection laws in India and, he said, hopefully “goads the government and Parliament into enacting a privacy and data protection law.”

In lieu of further legislative action, companies may be able to resolve some issues by establishing clearer privacy policies, Niraj Gunde, a Mumbai-based attorney and consumer advocate, told Bloomberg BNA. Most software agreements have a clandestine clause that allows companies to access user data, but those agreements should also state how the data will be used, stored and eventually disposed of, he said.

For more details visit https://cis-india.org/internet-governance/news/bloomberg-bna-february-1-2017-nayanima-basu-india-whatsapp-privacy-fight-may-affect-multinationals

Privacy after Big Data - Workshop Report

amber — 2017-01-27T01:09:17Z

The Centre for Internet and Society (CIS) and the Sarai programme, CSDS, organised a workshop on 'Privacy after Big Data: What Changes? What should Change?' on Saturday, November 12, 2016 at Centre for the Study of Developing Societies in New Delhi.

This workshop aimed 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 was an open event.

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 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.

This workshop sought to discuss some of the emerging problems due to the advent of big data and possible ways to address these problems. The workshop began with Amber Sinha of CIS and Sandeep Mertia of Sarai introducing the topic of big data and implications for privacy. Both speakers tried to define big data and brief history of the evolution of the term and raised questions about how we understand it. Dr. Usha Ramanathan spoke on the right to privacy in the context of the ongoing Aadhaar case and Vipul Kharbanda introduced the concept of Habeas Data as a possible solution to the privacy problems posed by big data. Amelia Andersotter discussed national centralised digital ID systems and their evolution in Europe, often operating at a cross-functional scale, and highlighted its implications for discussions on data protection, welfare governance, and exclusion from public and private services. Srikanth Lakshmanan spoke of the issues with technology and privacy, and possible technological solutions. Dr. Anupam Saraph discussed the rise of digital banking and Aadhaar based payments and its potential use for corrupt practices. Astha Kapoor of Microsave spoke about her experience of implementation of digital money solution in rural India.

Post lunch, Dr. Anja Kovacs and Mathew Rice spoke on the rise of mass communication surveillance across the world, and the evolving challenges of regulating surveillance by government agencies. Mathew also spoke of privacy movements by citizens and civil society in regions. In the final speaking session, Apar Gupta and Kritika Bhardwaj traced the history of jurisprudence on the right to privacy and the existing regulations and procedures. In the final session, the participants discussed various possible solutions to privacy threats from big data and identity projects including better regulation, new approached such as harms based regulation and privacy risk assessments, and conceiving privacy as a horizontal right. The workshop ended with vote of thanks from the organizers.

The agenda for the event can be accessed here, and the transcript is available here.

For more details visit https://cis-india.org/internet-governance/blog/privacy-after-big-data-workshop-report

CPDP (Computers, Privacy and Data Protection) 2017

praskrishna — 2017-02-03T02:02:05Z

Amber Sinha participated as a panelist in a panel on 'EU Adequacy Status for International Data Transfers' in Brussels, Belgium on January 26, 2017. The event was organized by Privacy International.

EU Adequacy Status for International Data Transfers

According to EU data protection laws, countries only have blanket freedoms to receive and process personal data from the EU if they have been awarded an adequacy status by the Commission. Given the vital importance of data transfers between countries in the global economy, having such a status is a valuable asset, as other available legal means of transfer are more limited. India, for e.g. is said to be losing in excess of Euro 30 billion per year through lost trade with the EU, as it lacks such adequacy status. In the 20+ years since the data protection Directive was passed, only 11 states have been decided to be ‘adequate’ by the Commission – which include the US with its recently awarded Privacy Shield. The Commission methodology and procedures for granting adequacy to countries is increasingly under scrutiny – for e.g. a recent study found that the way it makes adequacy decisions for its trade partners could be accused of being obscure, inconsistent and without clear criteria or rules or timeframes. This also makes EU data protection laws vulnerable to challenge under world trade rules. This panel will address the following questions:

Questions to be considered:

On what basis does the EU and the Commission make decisions on whom to grant adequacy status?

In the light of the Schrems judgement defining adequacy as ‘essentially equivalent’, should all past decision be revised?

Given that more than 100 countries now have general data protection laws, how should countries be chosen for adequacy judgements?
What criteria and methodologies should be used to ensure all countries are treated equally, to ensure fundamental rights are equally upheld, and to avoid possible challenge under WTO rules?
(New) What are your views on the EC proposal to facilitate international transfers of personal data, recently published?

Panel:

Chair: Jan Albrecht MEP

Panel:

Kristina Irion, Institute of Information Law (IVIR), University of Amsterdam:

Kristina is expert academic in both data protection and related trade issues, author of recent study ‘Trade and Privacy: complicated bedfellows’

Amber Sinha, Centre for Internet and Society (CIS), India

Amber is policy researcher specialising in privacy and big data ; CIS is an India NGO and partner organisation of Privacy International.

Daniel Cooper, Covington and Burling ;

Dan is partner at this global law firm, which advises both business and government clients round the world ; he leads the data protection practice in London

Bruno Gencarelli, European Commission DG Justice ;

Bruno is the head of the new DG Justice unit on data flows and data protection, and as such the Commission boss of adequacy

Veronica Perez-Asinari, European Data Protection Supervisor (EDPS).

Veronica is the EDPS head of unit for supervision and enforcement; she has also recently spent some months working with the Argentina DPA (Argentina has EU adequacy).

Moderator: Anna Fielder, Privacy International

For more details visit https://cis-india.org/internet-governance/news/cpdp-computers-privacy-and-data-protection-2017

For India’s complaints department, visit Facebook Live

praskrishna — 2017-01-25T02:03:03Z

Notebook: Social media cuts through red tape in a country beset by inertia.

The article by Amy Kazmin was published in the Financial Times on January 23, 2017. Sunil Abraham was quoted.

Rarely has a soldier’s lament about bad food received such attention. But Tej Bahadur Yadav, of India’s Border Security Force, made national headlines with Facebook videos complaining about his rations along India’s tense line-of-control with neighbouring Pakistan.

Standing against a landscape of desolate, snow-covered mountains, Mr Yadav bemoaned the fried flatbread and tea that constitutes breakfast, and the watery lentils, seasoned only with salt and turmeric, of his lunch. It was unclear whether his main complaint was about the poor cooking quality or limited food quantity but the video of the offending meals, including a burnt chapati, suggested both.

“I do not want to blame the government,” he said calmly in Hindi. “The government provides everything for us but these higher officers sell everything. Sometimes, we soldiers go hungry.”

Reaction to the videos, which were covered widely by the mainstream media, came fast and furious. The BSF publicly accused Mr Yadav of indiscipline, saying he was a chronic malcontent previously subjected to a court martial for aiming his weapon at a superior. It also noted he was taking voluntary retirement soon.

But many Indians found it easy to believe that their country’s troops are short-changed on food and they rallied to the disgruntled soldier as a courageous whistleblower. Prime Minister Narendra Modi ordered an investigation, and a dietitian was reportedly sent to the border to assess the soldiers’ food.

Analysts pointed out that Mr Yadav’s gripe echoed official critiques of deficiencies in the army’s food procurement. “One can imagine the toil our jawans [junior soldiers] go through while guarding the border in chilling conditions. And the least they can expect is a good meal after long hours of hard duty,” an Indian Express editorial declared.

That a soldier posted in a remote border area could unleash such a kerfuffle via a video highlights how Indians armed with mobile phones are taking to social media to hold to account the traditionally non-responsive political and bureaucratic establishment.

Smartphones make up nearly 30 per cent of phones in use in India and that number is rising fast, according to the Asian research group CLSA. Sushma Swaraj, India’s foreign minister, has garnered attention for her rapid responses to individual Twitter pleas for help — whether from Indians in trouble abroad or those struggling to renew a passport or secure a visa for a visitor.

Now other ministers and government agencies, including local police forces, have begun to respond personally to pleas for help and public complaints on Twitter. It’s a big change from a time I recall well, when Indians tangled in red tape had no option but to find those with connections to try to influence, or prod, the seemingly impenetrable bureaucracy.

“Bureaucrats and politicians are now active and available on social media — ordinary citizens tweet politicians and there is a spectacle of immediate redress of complaints,” Sunil Abraham, executive director of the Bangalore-based Centre for Internet and Society, told me. When New Delhi’s police department set up an office to receive complaints against corrupt officers, for example, many citizens provided audio or visual recordings of the alleged wrongdoing. It’s only a matter of time before such footage finds its way to social media — or beyond. Ironically, those whose plights gain traction on social media, and are then amplified by mainstream media, are sometimes low-ranking civil servants harassed by their superiors.

This week brought news of a female railway clerk punished for dereliction of duty after she refused to sing “one particular” duet with her senior manager at his farewell party. A friend who works for a major western social media platform here in India (who ironically can’t be identified as he wasn’t authorised to speak to me), tells me that “the power structures that governed who used to be heard and who wouldn’t be heard have changed”. As technology spreads further and deeper in India, we can expect that noise to amplify.

For more details visit https://cis-india.org/internet-governance/news/financial-times-amy-kazmin-january-23-2017-for-indias-complaints-department-visit-facebook-live

Seminar on Understanding Financial Technology, Cashless India, and Forced Digitalisation (Delhi, January 24)

sumandro — 2017-01-23T13:17:19Z

The Centre for Financial Accountability is organising a seminar on "Understanding Financial Technology, Cashless India, and Forced Digitalisation" on Tuesday, January 24, at YWCA, Ashoka Road, New Delhi. Sumandro Chattapadhyay will participate in the seminar and speak on the emerging architecture of FinTech in India, as being developed and deployed by UIDAI and NPCI.

Cross-posted from Centre for Financial Accountability.

Programme Schedule

09.30 - Registration

10:00 - Introduction to the Seminar & Setting the Context

Madhuresh Kumar, National Alliance of People’s Movements

10:15–11:30 - Session 1 - Understanding the Political Context of FinTech

B P Mathur, Former Dy CAG

Prabir Purkayastha, Free Software Movement of India and Knowledge Commons

C P Chandrasekhar, Centre for Economic Studies and Planning, JNU

11:30-11:45 – Tea / Coffee break

11:45-13:15 - Session 2 - How will FinTech Impact the Poor, and Labour and Banking Sector?

Ashim Roy, New Trade Union of India

Nikhil Dey, Mazdoor Kisan Shakti Sangathan

Ravinder Gupta, General Secretary, State Bank of India Officers Association

13:15-14:00 – Lunch

14:00-15:30 - Session 3 - Understanding the Economic Context of FinTech

Indira Rajaraman, Former Director, RBI

Tony Joseph, Sr. Journalist

15:30-17:00 - Session 4 - Understanding the Architecture of FinTech: Linkages to Aadhaar, IndiaStack etc

Sumandro Chattapadhyay, the Centre for Internet and Society

Gopal Krishna, ToxicsWatch

17:00 – Tea

For more details visit https://cis-india.org/internet-governance/news/seminar-on-understanding-financial-technology-cashless-india-and-forced-digitalisation-delhi-jan-24-2017

Training programme for Chairs, Convenor and Experts for International Standardization Work

praskrishna — 2017-01-20T17:06:09Z

Udbhav Tiwari attended this programme organized by National Institute of Training for Standardization, under the Bureau of India Standards on the 19 and 20 of January, 2017 in Nodia, New Delhi.

Udbhav was invited due to CIS's membership at the LITD 17 at BIS and WG5 under ISO JTC 1 SC 27. For full schedule of the training programme click here.

For more details visit https://cis-india.org/internet-governance/news/training-programme-for-chairs-convenor-and-experts-for-international-standardization-work

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 https://cis-india.org/internet-governance/blog/the-design-technology-behind-india2019s-surveillance-programmes

Sunil Abraham on Aadhaar's misuse during demonetisation

praskrishna — 2017-01-19T01:35:02Z

Sunil Abraham spoke to Economic Times on the misuse of Aadhaar during demonetisation.

Sunil Abraham said:

"We saw Aadhaar being misused at large-scale during the demonetization, criminals had created a black market in Aadhaar identity cards and photocopies of Aadhaar. Those interested in converting black money were purchasing these photocopies from the black market and giving them to bank officials so that they could maintain fake records that tried to prove that ordinary people came in photos' cash transactions.

Whenever we try to introduce technological measures we must always think of the human systems that are at work and the human procedures that are at work. Another example is today telcos giving sim cards based on Aadhaar authentication to meet their sales targets some of these telcos are giving multiple sim cards for a single Aadhaar based KYC. Those sim cards are often resold into black market or given to persons that are not familiar with the aadhaar number holder and this has only makes the security situation in the country worse. It has not improved." Watch the Video

For more details visit https://cis-india.org/internet-governance/news/economic-times-january-14-2017-sunil-abraham-on-aadhaar-misuse-during-demonetisation

Lost your phone? Here's how you can make your mobile theft-proof

praskrishna — 2017-01-19T02:40:21Z

Losing a phone has become even more costly after the government's push for a cashless society.

The article by Sanjay Kumar Singh was published in the Business Standard on January 16, 2017. Udbhav Tiwari was quoted. Read the full article on Press Reader. Udbhav Tiwari was quoted.

Prime Minister Narendra Modi, while pitching for cashless transactions, has coined a new phrase — your mobile is a bank. If you really want to use your mobile phone as a bank, remember the costs of losing it are much higher. Earlier, if you lost your mobile phone, there was the risk of misuse of personal data. Now, with most gadgets also carrying mobile wallet apps, there is the added risk of serious financial loss. A number of security solutions, available in the form of external security software or in-built into the phone, can help you track the device, lock it and minimise the probability of misuse.

First, it should give you some satisfaction that if your device is of recent vintage, someone stealing your phone will not be able to use it. Earlier, thieves would wipe the data on the phone (if it had a pin), set up a new account, and use it. But if it is an Apple phone that came out after 2014 or a phone with Android 6.0 Marshmallow or higher operating system (OS), the server will ask for login information of the first account (with which the owner had initially set up the phone). Only then will it allow someone to set up a second account on the same device. Since that information is not likely to be available to the thief, the phone will be of little use to him.

Track your device

Both Apple and Android have in-built features that allow you to track your device if it gets lost. In Apple it is called 'Find my phone' and on Android, 'Android device manager'. When you log in through your Apple or Google account while setting up the phone, this feature gets enabled by default. After your phone is stolen, go online and type 'Find my phone' or 'Android device manager'. Use your account credentials to log in. As long as your phone is on and is connected to the Internet, it will broadcast its location. If it has been switched off or can't connect to the Internet, you will only be able to see the last location from where it transmitted.

Antivirus software for mobile phones also offer tracking features. "Using our mobile security software, users can locate their lost device on a map or receive the location coordinates through an SMS," says Ritesh Chopra, country manager, Norton by Symantec. These software also enable you to lock the lost device remotely either from the antivirus software's web site or by sending an SMS. Chopra informs that you can also remotely delete all the data stored either on the device or its memory card. Users can also trigger an alarm if they think their device is still in the vicinity. "Some antivirus software also allow you to take snapshots of the illegal user once the original user has reported it as stolen," says Udbhav Tiwari, policy officer at the Centre for Internet and Society, Bengaluru.

Take preventive security measures

How well your phone and the data on it are protected after theft will, however, depend on the security measures you adopt proactively while the phone is in your possession.

Install a password: The first stage of protection you should adopt is a pin, pattern lock, or password for your mobile phone. If you don't set up a pin, everything that doesn't require a second level of authentication is available to anyone who gets possession of your device. If you lose your laptop but have logged out of your email or social networking account, the thief can't access them. But on mobile phones most of these services don't require a second level of authentication.

Most alarming from a financial standpoint is the fact that most mobile wallets don't ask for a password before allowing you to transact (Paytm has introduced one recently). "If you have a mobile wallet and don't have a pin on your phone and it gets stolen, the thief can easily transfer money from your wallet to another," says Tiwari. Most mobile and net banking apps, however, require a login and password every time you want to access them, and are hence safer.

Set a pin promptly--a strong one that can't be easily guessed. Numbers associated with you, such as your birthday, are a strict no-no. If your phone carries especially sensitive or important data, eschew pins altogether and use a detailed password with a diverse combination of characters.

Nowadays you can also deploy fingerprint-based unlocking feature on your phone. "By using Fonetastic for the Android platform, you can set the fingerprint unlock feature on your phone," informs Sanjay Katkar, managing director and chief technology officer, Quick Heal Technologies.

Encrypt data on your device: Even if you set up a pin or password, the data on your mobile phone is not protected. Hackers can bypass it and gain access to your files. To protect data, OS developers like Google and Apple encrypt data. The device encryption feature works using something unique on your device, such as its serial number, and your pin. Even if someone gets access to your files via a computer, they will not be able to open them. These files will open only on your phone, and for that they will need your pin, password or pattern lock (presuming you have set one).

In all iOS phones, the moment you set your pin, all files get automatically encrypted. In any Android phone purchased within the last one year (that runs on Android 6.0 Marshmallow by default), the same holds true. But if you have an older Android phone or OS version, you need to enable this feature manually. Go to Settings, then to Security, find an option called 'Encrypt phone' and click on it.

Install an app lock: Some security apps allow you to lock the apps on your phone and also encrypt the files produced by those apps. When you start an app, the security app will ask for a pin. And when you exit an app, it will encrypt the files stored within the app. Go to Google Play or iStore and type 'encrypted file storage' to get the most popular lock-and-encrypt apps. "If you use device-level encryption, you may not need these apps, as the former locks and encrypts the entire device," says Tiwari

For more details visit https://cis-india.org/internet-governance/news/business-standard-january-16-2017-sanjay-kumar-singh-lost-your-phone-here-is-how-you-can-make-your-mobile-theft-proof

Demonetisation: Cost Vs Benefit

praskrishna — 2017-01-17T16:04:16Z

Sunil Abraham took part in a discussion on Demonetisation in NDTV's Big Fight programme aired on December 24, 2016.

Prime Minister's big post-demonetisation deadline of 50 days is coming to a close. Does this mean that people's ordeal with the currency ban will also come to an end? Will the government continue to have people's support and patience through its big bang reforms if they fail to achieve their original aim of retrieving black money? We ask, what lies ahead for India? How long will it take for India to become a cashless economy? What are the pitfalls? With a high bank dormancy rate of 43%, most Indians still prefer to make transactions through cash. Even if we are able to make that journey to becoming a cashless economy by 2020, does the government have the infrastructure to make online payments safe?

Sunil Abraham said that the trouble with the design of the Aadhaar project is that it makes citizens transparent to the state and does not make state transparent to the citizen. With every generation of corruption busting technology we see new ways of corruption being introduced into our society. For more watch the video

For more details visit https://cis-india.org/internet-governance/news/ndtv-december-24-2016-demonetisation-cost-versus-benefit

India’s Digital ID Rollout Collides With Rickety Reality

praskrishna — 2017-01-17T15:35:04Z

India’s new digital identification system, years in the making and now being put into widespread use, has yet to deliver the new era of modern efficiency it promised for shop owner Om Prakash and customer Daya Chand.

The article by Gabriele Parussini was published in the Wall Street Journal on January 13, 2017. Hans Varghese Mathews was quoted.

At first, it drove both men up a tree.

The system, which relies on fingerprints and eye scans to eventually provide IDs to all 1.25 billion Indians, is also expected to improve the distribution of state food and fuel rations and eventually facilitate daily needs such as banking and buying train tickets.

But Mr. Prakash couldn’t confirm his customers’ identities until he dragged them to a Java plum tree in a corner of his village near New Delhi’s international airport. That was the only place to get the phone signal needed to tap into the government database.

“I hopped on a chair and put my finger in the machine,” said Mr. Chand, a 60-year-old taxi driver. Getting his state food ration “used to be much easier,” he said.

In a system so vast, even small glitches can leave millions of people empty-handed.

The government began building the system, called Aadhaar, or “foundation,” with great fanfare in 2009, led by a team of pioneering technology entrepreneurs. Since then, almost 90% of India’s population has been enrolled in what is now the world’s largest biometric data set.

Prime Minister Narendra Modi, who set aside early skepticism about the Aadhaar project after taking power in 2014, is betting that it can help India address critical problems such as poverty and corruption, while also saving money for the government.

But the technology is colliding with the rickety reality of India, where many people live off the grid or have fingerprints compromised by manual labor or age.

Panna Singh, a 55-year-old day laborer in the northwestern state of Rajasthan who breaks stones used to build walls, says the machine recognized his scuffed-up fingerprints only a couple of times.

“I’ve come twice today,” he said at a ration shop in the village of Devdungri. “That’s a full day of work, gone.”

Iris scans are meant to resolve situations where fingerprints don’t work, but shops don’t yet have iris scanners.

Ajay Bhushan Pandey, chief executive of the government agency that oversees Aadhaar, said kinks will be ironed out as the system is used, as is the case with software rollouts. It works 92% of the time, and that will rise to 95%, he said.

“On the scale of what [Aadhaar] has achieved, the rollout has been remarkably smooth,” said Nandan Nilekani, the Infosys co-founder who spearheaded the project. “I don’t see any issues that are disproportionate to the size of project.”

An Aadhaar ID is intended to be a great convenience, replacing the multitude of paperwork required by banks, merchants and government agencies. The benefits are only just beginning, backers say, as the biometric IDs are linked to programs and services.

But in rural areas, home to hundreds of millions of impoverished Indians dependent on subsidies, the impact of technical disruptions has already been evident.

After walking for two hours across rough underbrush in Rajasthan to get kerosene for the month, Hanja Devi left empty-handed because the machine couldn’t match her fingerprint with her Aadhaar number.

“It’s always so difficult” using the system, said Ms. Devi, who lives with her husband and a nephew on 1,500 rupees ($22) a month.

Ranjit Singh, who operates the shop, said five of the 37 customers before Ms. Devi also left the shop empty-handed, a failure rate of over 15%.

A shop manager in a neighboring village said identification had failed for a similar portion of his 500 customers.

Any biometric recognition system of Aadhaar’s size is bound to show duplicates, meaning some people’s biometric identifiers will match someone else’s when they try to enroll.The new system hasn’t eliminated attempts at fraud. In August, police in Rajasthan accused two shop managers of linking their fingerprints to a multitude of cards and stealing for months the rations of dozens of clients.

Hans Varghese Mathews, a mathematician at the Bangalore-based Center for Internet and Society, used the results of a test run by Aadhaar officials on a sample of 84 million people to extrapolate the figure for India’s total population. The error level is less than 1%, but in the world’s second-most populous country, the snag would still affect about 11 million people, he said.

Government officials disputed the calculation, saying the number of duplicates would be much smaller—and that it would take only seven analysts to manage the error caseload.

As for trouble connecting to the registry, better infrastructure, including steadier internet connections, will eventually also help, Mr. Pandey said.

For now, Mr. Prakash has found a way to cope without climbing trees. After scouring the village, he set up a shack in a spot with enough bandwidth for his fingerprint scanner to work. It is hardly efficient. He issues receipts in the morning at the shack, then goes back to his shop to hand out the grains. Customers have to line up twice, sometimes for hours.

Mr. Prakash has applied to the government to operate without biometric identification, but his request was turned down, he said. “They said: ‘You have to keep trying.’ ”

For more details visit https://cis-india.org/internet-governance/news/wall-street-journal-gabriele-parussini-january-13-2017-indias-digital-id-rollout-collides-with-rickety-reality

Supreme Court issues notice to WhatsApp, Centre on data privacy

praskrishna — 2017-01-17T15:06:08Z

Analysts said India lacked data protection laws.

The article by MJ Antony, Ayan Pramanik and Apurva Venkat was published in the Business Standard on January 17, 2017. Sunil Abraham was quoted.

The Supreme Court on Monday issued notices to the Centre and WhatsApp over an appeal alleging the instant messaging service did not ensure the privacy of its users and seeking regulations to protect personal information.

Chief Justice J S Khehar granted urgent hearing when Harish Salve, counsel for the petitioner, submitted that the service provided free by the platform to 155 million subscribers violated constitutional provisions protecting privacy.

The government and WhatsApp would file their replies within two weeks, the court directed after Salve sought its intervention to protect consumer data till India enacted data protection laws.

The Supreme Court heard the petition after the Delhi High Court in September directed WhatsApp not to share its users’ data with its parent Facebook and asked it to provide users with the option to opt out. The court was hearing a public interest litigation over a change in WhatsApp’s user policies that explicitly allowed Facebook to access to WhatsApp users’ data.

A Facebook spokesperson said the company could not comment immediately.

Analysts said India lacked data protection laws that prohibit global Internet firms from harvesting user data for their business. “We used to think that we had some privacy jurisprudence in the country. If you asked a lawyer 1.5 years ago, he would say privacy in India was a constitutionally guaranteed right,” said Sunil Abraham, director of the Centre for Internet Society. “It is not explicitly referenced into the law.”

Saroj Kumar Jha, partner, SRGR Law Offices, said, “Along with the lack of policies and laws, there are very few judgments on privacy issues based on constitutional rights. Thus, it makes it very difficult to judge a case.”

Salve argued that till the government enacted legislation to protect user data, the court should provide protection. The Telecom Regulatory Authority of India should introduce a clause in telecom licences that if calls were intercepted the licence would be cancelled, he said.

The court sought the assistance of Attorney-General Mukul Rohatgi to sort out the issues.

Rohatgi, while arguing an earlier case related to alleged violation of privacy, had taken the stand that the Constitution did not protect the right to privacy. According to him, neither the fundamental rights nor Supreme Court judgments recognises a citizen’s right to privacy. The bench hearing that case referred the question to a constitution bench last year.

For more details visit https://cis-india.org/internet-governance/news/business-standard-mj-antony-ayan-pramanik-apurva-venkat-supreme-court-issues-notice-to-whatsapp-centre-on-data-privacy

The Dangers Of Aadhaar-Based Payments That No One Is Talking About

praskrishna — 2017-01-17T14:39:53Z

Less than three months ago, India’s banking sector was hit by a data breach which compromised 32 lakh debit cards and led to fraudulent transactions worth Rs 1.3 crore.

The article by Mayank Jain was published by Bloomberg on January 17, 2017. Sunil Abraham was quoted.

The incident started a debate around security of payment systems. But the debate had just about begun when the government’s demonetisation decision dragged attention away from it. Now as the dust settles and as the government starts to push newer means of digital payments, the focus is back on the security of systems being seen as an alternative to cash.

One such system is Aadhaar-based payments which could potentially allow citizens to pay anytime anywhere with the tap of a finger.

In theory, it sounds simple.

The Aadhaar-based payment system runs on the existing Aadhaar infrastructure through which a person’s biometrics are used to authenticate the user. Once authenticated, the user can transfer funds directly from one bank account to another without going through a mobile wallet or a card.

The payment system requires a smartphone, a working internet connection and a biometric authentication device with the merchant. The customer needn’t have a card or a phone as long as he or she has an Aadhaar-seeded bank account.

National Payments Corporation of India has developed this payments infrastructure over the existing Aadhaar-Enabled Payments System, the railroad on which the public distribution system has been functioning for years now.

Amitabh Kant, chief executive officer of the government policy think tank NITI Aayog said, earlier this month, that all cards and point-of-sale machines will become redundant in the country in the next two-and-a-half years as Aadhaar-based payments become popular.

A Double-Edged Sword

While payments authenticated by biometrics sound like a good idea in a country where less than one in three people actually own a smartphone, there are fears that integrating biometrics with digital payments could prove to be a security headache.

The first part of the problem is that Aadhaar, while effective, is not a fool-proof method of authentication and identification failures are not uncommon. Building a payment system atop the Aadhaar system will simply transfer some of these vulnerabilities.

The possibility of transaction failures due to a biometric mismatch are real, admitted a former high-ranking official from the Unique Identification Authority of India (UIDAI) who spoke to BloombergQuint on the condition of anonymity.

Officially, the false reject rate – rejection of a biometric when it’s actually correct – is set at a maximum of 2 percent for devices that get certified from the UIDAI. On the ground, however, failure rates vary widely, said the official quoted above.

According to the official statistics on UIDAI, more than 16 lakh Aadhaar-authentication requests failed in the past week. The type of errors encountered ranged from the biometric data not matching the database to demographic details not checking out.

The failure rates on Aadhaar Enabled Payment System for interbank transactions (which is a part of all Aadhaar authentication requests) were found to be as high as 60 percent by the Watal Committee on digital payments which published its report in December.

Additionally, newer security threats may also emerge if the scope of Aadhaar is widened. These include identity theft if a person’s biometrics are compromised from the payment system, phishing attempts, and the difficulty in revoking access once biometric information is compromised.

Biometrics aren’t an exact science, the official quoted above said, while adding that possible glitches have to be weighed against the benefits of offering a widely accessible non-cash mode of payment to citizens.

How Easy Is It To Beat The System?

Sunil Abraham, executive director of Bangalore based research organisation Center for Internet and Society (CIS) said that one way to assess how secure a system is to understand the cost and effort that goes into breaching it.

In the case of Aadhaar-based payment systems, the costs may not be high.

“There’s the gummy finger method which essentially requires some Fevicol or gum to duplicate someone’s fingerprint which can be enough to transact on someone’s behalf without them being there,” said Abraham in a phone conversation with BloombergQuint. “An average person can’t clone a smart card. Just fevicol and glue can help you make a gummy finger. The biometric lobby will say that advanced scanners defeat the gummy finger attack but more advanced scanners are also more expensive.”

Also, using more sensitive devices could push up the instance of false rejection of transactions, said Abraham.

There are other concerns. Like the fact that devices used for Aadhaar identification could store personal information, which, in turn, could be susceptible to a breach.

There are five main components in an Aadhaar app transaction – the customer, the vendor, the app, the back-end validation software, and the Aadhaar system itself. There are also two main external concerns – the security of the data at rest on the phone and the security of the data in transit. At all seven points, the customer’s data is vulnerable to attack.
Bhairav Acharya, Program Fellow, New America

Acharya, who works at a U.S.-based think tank called New America and focuses on cyber-law, said the key concern is that Aadhaar data can be stolen and misused.

“The app and validation software are insecure, the Aadhaar system itself is insecure, the network infrastructure is insecure, and the laws are inadequate.”

The biometric data collected on the authentication device at a merchant location can potentially be stored on the device as well as the smartphone of a merchant for a long time. Abraham added that there is a possibility that non-certified devices will enter the market, which can store data and use it in the future to do fraudulent transactions.

The concerns over potential misuse of biometric data by private agencies has also been highlighted by the Supreme Court of India. Earlier this month, the apex court refused to expedite the hearing on a petition regarding Aadhaar being utilised for multiple use cases by private companies. It, however, observed that private agencies collecting biometric data “is not a great idea”.

Deficient Privacy Laws

Apar Gupta, a Delhi-based lawyer working on cyber security, says that the lack of strong privacy protecting provisions is another concern that should be kept in mind while moving towards an Aadhaar-based payment system.

“The data stays for a long time with the stakeholders in the system. The requesting agency can keep it for seven years and the UIDAI can store it for five years. There are insufficient safeguards and there’s an absence of privacy law and an independent privacy regulator,” he said.

Acharya agreed.

India does not have the necessary laws to deal with a decentralised, biometrically-authenticated, mobile payments system, according to Acharya.

“Moreover, current laws and policies regarding the Aadhaar project, particularly the centralised database, are inadequate from the point of view of data security and end-user privacy,” he said.

Abraham of CIS said the issue is wider than Aadhaar. The problem is the lack of a strong data security law.

We only have a minimal data security law under the Section 43A of the Information and Technology Act which only applies to the private sector. There’s no law that applies to the government. Even 43A has not been applied consistently. There’s no place for you to go and complain if your identity has been compromised.
Sunil Abraham, Executive Director, Centre for Internet & Society

Gupta noted that, in the event of an identity threat, avenues of recourse are also limited. He said the best option is an appeal in the civil court, which is a long drawn out process.

In final analysis, according to Abraham, credit and debit cards are easier to secure as access can be revoked quickly.

“The trouble with biometrics is that the chain of trust is harder to establish because too many people can get access to biometrics and then you need to devise these convoluted solutions like hardware secure zones,” Abraham said.

“So the advantage of going with a smart card is that it can be easily re-secured, but with biometrics, once I compromise it, it’s lifelong.”

For more details visit https://cis-india.org/internet-governance/news/bloomberg-mayank-jain-january-17-2017-dangers-of-aadhaar-based-payments-that-no-one-is-talking-about

The soon-to-be launched Aadhaar Pay will let you make purchases using your fingerprint

praskrishna — 2017-01-16T03:14:22Z

Paying for your groceries and other goods by using your biometrics instead of an e-wallet, debit card or cash seems to be the next phase in the Centre’s ambitious push to shift the country to a “less cash” economy, as its mandarins term it.

The article by Indulekha Aravind was published in the Economic Times on 15 January 2017. Sunil Abraham was consulted for this.

Ajay Bhushan Pandey, CEO of the Unique Identification Authority of India (UIDAI), says it will be rolling out Aadhaar-enabled payment system, or Aadhaar Pay, for merchants in the next few weeks. This will be an app for merchants that enables them to receive payments through biometric authentication of the customer, provided their bank accounts are linked to their Aadhaar number. "A pilot is under way in fair price shops in Andhra Pradesh where shopkeepers are accepting payments from PDS beneficiaries. The results are very encouraging," says Pandey.

The idea takes off from the existing Aadhaar-enabled payment system (AEPS) used by bank business correspondents (BCs) in rural areas to disburse and accept cash, using micro ATMs. "We are trying to tweak this so that a similar device can be used by a local merchant," says Pandey. Adoption will depend on two factors: merchants’ acceptance of it and whether they can use an app rather than a micro ATM. The biggest advantage through this method of payment, says Pandey, is that the customer will not need a credit or debit card, or even a smartphone.

The limits for transactions using AEPS, such as the number of daily transactions, will be left to the discretion of the banks. In the long term, the AEPS will be migrated to the BHIM (Bharat Interface for Money) platform but the rollout of Aadhaar Pay will happen before that. Post demonetisation, banking BC’s number of transactions using AEPS has leapt from 4-5 lakh to 14-15 lakh, says Pandey. According to Reserve Bank of India data on electronic payment systems, the total volume of such transactions jumped from 671 million in November 2016 to 957 million in December. USSD-based payments, which can be done using a basic feature phone, are among the biggest beneficiaries: the volume rose from just 7,000 in November to 1,02,000 in December, and value of transactions from over Rs 7,000 to over Rs 1 lakh. Prepaid payment instruments — mainly mobile wallets — rose from 59 million to 88 million in the same period (and value from Rs 1,300 crore to Rs 2,100 crore).

While Aadhaar Pay is likely to ride the demonetisation wave if it is launched soon, certain concerns remain, as the list is how secure such a payment system will be. The UIDAI CEO says it is a paramount concern for the organisation, too. "We are using the latest technology to ensure the information stays encrypted end to-end, so that information is not leaked or misused. In the months to come, we will strengthen the security."

Wary About Security
Sunil Abraham, executive director of the Centre for Internet and Society, a think tank that has been analysing the Aadhaar project for six years, outlines several reasons why Aadhaar-based biometrics is inappropriate for authentication in payments, unlike card-based payments that use cryptography.

"With biometrics, there is always an error ratio. It is imprecise matching, whereas with cryptography (smart cards), there is no false positive or negative. You either have the key (PIN) or you don’t. It is also very cheap to defeat biometric authentication — even an unlettered person can do it," says Abraham. It would be easy enough, he says, to replicate someone else’s fingerprint by pressing it against lukewarm wax and filling the mould with glue to get a dummy finger. In contrast, compromising a smart card requires more cost and effort, from tech-savviness to machines such as a skimmer that will read the card. "And once you are compromised,you are compromised forever. You can’t change it, like a debit card PIN."

Using Aadhaar for authentication had proved to be a failure during the exchange of currency notes following demonetisation, he adds, pointing to how the poor and the middle class stood in queues for money while stacks of new currency were recovered from the homes of businessmen and bureaucrats. "When you have bank officials who are corrupt, giving them your biometrics is giving them more ammunition for corruption." To catch the criminals, law enforcement agencies had to resort to CCTV footage,a relatively older technology, he says. Others point out that while it may be secure, certain factors stand in the way of making biometrics-based payment authentication a large-scale success. Amrish Rau, CEO of PayU India, a payment gateway provider, cites a list of reasons why it would inevitably take off but only in 5-10 years.

"For one, the technology is not yet good enough. There are also bandwidth and data constraints in sending biometric data," says Rau. Even in more mature markets, it has yet to find widespread acceptance, he says, pointing to the slow adoption of Apple Pay and Samsung Pay in the US. "It’s not the answer today.” This is in contrast to NITI Aayog CEO Amitabh Kant’s recent remarks that cards and PoS machines would become redundant by 2020 because Indians would be making payments using their thumb (biometrics). "... my view is that in the next two and a half years, India will make all its debit cards, credit cards, all ATM machines, all PoS machines totally irrelevant,” Kant had said at a Pravasi Bharatiya Divas session in Bengaluru.

UIDAI’s Pandey is more circumspect. “I wouldn’t say who would replace what. But from the government’s side we are encouraging all modes of digital payment. India has a diverse population and some people might prefer using a card, others a wallet. Collectively, they will contribute to a less-cash society.”

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