We are anonymous, we are legion

September 2013 Bulletin

praskrishna — 2013-10-24T06:48:33Z

Our newsletter for the month of September 2013 can be accessed below.

The Centre for Internet and Society (CIS) welcomes you to the ninth issue of its newsletter for the year 2013. During this month we signed an MoU with the Goa University to enhance digital literacy in Konkani language, submitted a report on Inclusive Disaster and Emergency Management for persons with disabilities to the National Disaster Management Authority, published an updated version of the Privacy Protection Bill, 2013 based on feedback collected from the Privacy Round Table held on August 24, and published an analysis of the Crucifixion Protests in Paraguay. Further, updates on our upcoming events and media coverage are brought in this newsletter.

Our policies on Ethical Research Guidelines, Non-Discrimination and Equal Opportunities, Privacy, Terms of Website Use, and Travel can be accessed here.

Accessibility

As part of our project on creating a national resource kit of state-wise laws, policies and programmes on issues relating to persons with disabilities in India with the Hans Foundation, we bring you a new draft chapter on the union territory of Andaman and Nicobar. With this we have completed compilation of draft chapters for 21 states and 4 union territories. Feedback and comments are invited from readers for this chapter:

National Resource Kit Chapter

The Andaman and Nicobar Chapter (by CLPR, September 30, 2013).

Reports

Inclusive Disaster and Emergency Management for Persons with Disabilities (by Deepti Samant Raja and Nirmita Narasimhan, September 17, 2013). It was submitted to the National Disaster Management Authority of India (NDMA) on September 17 for their action.
The ICT Opportunity for a Disability-Inclusive Development Framework (by leading international organisations such as G3ict, ITU, Microsoft, UNESCO, et.al.) was released on September 24. CIS gave its inputs to this report.

Access to Knowledge and Openness

The Access to Knowledge team at CIS is working on expanding the Indic language Wikipedia in partnership with the Wikimedia Foundation . As part this project, we held seven Wikipedia workshops. Our project on Pervasive Technologies examines the relationship between production of pervasive technologies and intellectual property and we have produced a column in EuroScientist as part of our efforts of promoting openness including open government data, open standards, open access, and free/libre/open source software:

Open Access
Column

Open Access: An Opportunity for Scientists around the Globe (by Subbiah Arunachalam, Euro Scientist, September 25, 2013).

Blog Entries

e - DIRAP Google+ Hangout: Open Government (by Christine Apikul, September 18, 2013).
The Indian Council of Agricultural Research Adopts an Open Access Policy (by Nehaa Chaudhari, September 30, 2013).

Wikipedia
Wikipedians from various communities can request for outreach programmes, technical bugs, logistics-merchandize and media, public relations and communications here.

Announcements

CIS Signs MoU with Goa University: The A2K team at CIS has signed an MoU with the Goa University to digitize the “Konkani Vishwakosh” under the Creative Commons license and build a digital knowledge partnership to enhance digital literacy in Konkani language. See here for more details.

Konkani Vishwakosh Digitization Project: The Centre for Internet and Society in collaboration with the University of Goa invites you to a two-month project on digitization of Konkani Vishwakosh. Please send in your applications by October 5, 2013.

Video

Wikipedians Speak: Piotr Konieczny: This episode brings you a conversation with Piotr Konieczny, a veteran Wikipedian from Poland. He has contributed to over 514 DYK articles on Wikipedia.

Columns and Blog Entries

Recap on Konkani Wikipedia Workshop (by Subhashish Panigrahi, Startup Goa Blog, September 9, 2013).
ଅବସର ପରର ଦ୍ବିତୀୟ ଜୀବନ, ଅବସର ପରେ ସକ୍ରିୟ ଭାବେ ଓଡ଼ିଆ ଉଇକିପିଡ଼ିଆରେ ଲେଖାଲେଖି ଜାରୀ ରଖିଥିବା ଜଣେ ଡାକ୍ତରଙ୍କ ସ‌ହ ଭାବାଲୋଚନା (by Subhashish Panigrahi, Odiapua, September 10, 2013).
Selection of Programme Officer — Pilot Projects, CIS-A2K (by Nitika Tandon, September 10, 2013).
Wikipedia reaches Classrooms in Hyderabad (by Syed Muzammiluddin, September 20, 2013).

Events Organised

A Kannada Wikipedia Workshop in Mysore (University of Mysore, August 6, 2013): This is a report of the workshop conducted last month. Dr. Pavanaja conducted the workshop.
Wikipedia Introductory Workshop (Department of Computer Science and Technology, University of Goa, September 28, 2013). Nitika Tandon conducted this workshop. The details will be posted soon.
Train the Trainer — Four-day long Residential Training Workshop in Bangalore (organised by CIS-A2K, Bangalore, October 3 – 6, 2013).

Events Co-organised

Digital Resources in Telugu: A Workshop for Research Scholars (co-organised by CIS-A2K and the English and Foreign Languages University, Hyderabad, September 13, 2013). T. Vishnu Vardhan participated in this event.
Re-releasing Konkani Vishwakosh & Building Konkani Wikipedia (organised by CIS-A2K and the University of Goa, Conference Hall, Goa University, Taleigao, September 26, 2013).
Wikipedia Introductory Workshop (co-organised by CIS-A2K and wikipedians John Noronha and Supriya Kankumbikar, September 27, 2013). Nitika Tandon participated in this workshop.
Odisha: Wikipedia workshop at IIMC, Dhenkanal (co-organised by CIS-A2K and Odia Wikimedia community, September 30, 2013). Subhashish Panigrahi coordinated the entire event along with members of Odia Wikipedia, Dr Subas Chandra Rout, Mrutyunjaya Kar and Sasanka Sekhar Das. This was covered by Odisha Diary (http://bit.ly/1bna9zd), and eOdisha Samachar (http://bit.ly/1aNJvv4).

Events Participated In

Workshop on e-Content Development (organised by Centre for Staff Training and Development, Dr. B.R. Ambedkar Open University, Hyderabad, September 4 – 6, 2013). Vishnu Vardhan gave a guest lecture on Open Source to Open Knowledge, Building Knowledge Bases and Platforms via Mass Collaboration on the Internet, e-Content in Indian languages – History, Challenges and Opportunities, Wikipedia Users to Wikipedia Authors – Exploring Wikipedia as an OER Tool, and e-Content, e-Student, e-Faculty – Reimagining classroom in the digital Age.
Kannada Wikipedia Workshop (organised by Department of Journalism and Mass Communication, SDM College, Ujire, September 15, 2013). Dr. U.B.Pavanaja participated in this workshop.
Konkani Wikipedia Workshop (organised by St. Aloysius College, AIMIT, St Aloysius College (Autonomous), Beeri, Mangalore, September 13, 2013). Dr. U.B. Pavanaja participated in this.

Media Coverage

'Help Konkani Wikipedia come out of incubation' (Deccan Herald, September 13, 2013): The article talks about the relative lack of content in Konkani Wikipedia. “To get it out of incubation, many should write Konkani articles for Wikipedia,” Dr. Pavanaja was quoted as having said.
Konkani Vishwakosh relaunch tomorrow (The Hindu, September 26, 2013). A coverage of the re-release of the Konkani encyclopaedia under Creative Commons license.
Goa university re-releasing Konkani encyclopaedia on Sept 26 (The Times of India, September 24, 2013): Goa University and CIS-A2K re-released the four volume 3632 page Konkani Vishwakosh (encyclopaedia) in Goa.
Goa University announces plan to upload Konkani encyclopedia on Wikipedia (Navhind Times, September 27, 2013).
Konkani Wikipedia from Goa University in 6 months (The Times of India, September 27, 2013): Goa University becomes the first varsity in India to allow data produced and copyrighted by an Indian university to be used by internet users. Professors, students and anyone with expertise or love for Konkani can come forward to help with the project for which training will be provided, says Vishnu Vardhan.
Konkani Wikipedia in the making (by Prakash Kamat, The Hindu, September 29, 2013): Goa University re-launched a four-volume Konkani encyclopaedia and will upload it on Wikipedia. The process will be completed in six months times, says Vishnu Vardhan.
For the love of Konkani: Preserving Goa's official language (by Joanna Lobo, DNA, September 29, 2013): Konkani has 24 lakh speakers as per the Census Department of India 2001 but online documentation is limited. CIS-A2K wants to strengthen the Konkani Wikipedia, says Nitika Tandon.
Goa University to make available online Konkani Wikipedia, within 6 months (by Jagran Josh, September 30, 2013).
Goa University Partners CIS India to Build Konkani Wikipedia (by Apurva Chaudhary, Medianama, September 30, 2013).

Access to Knowledge (Copyright and Pervasive Technologies)

The Access to Knowledge programme addresses the harms caused to consumers, developing countries, human rights, and creativity/innovation from excessive regimes of copyright, patents, and other such monopolistic rights over knowledge:

Event Participated In

The Law and Economics of Copyright Users Rights (organised by the American University Washington College of Law, Massachusetts Ave., NW, Washington DC, September 26, 2013). Sunil Abraham presented the Pervasive Technologies project.

Internet Governance

We are doing a project on conducting research on surveillance and freedom of expression (SAFEGUARDS) with Privacy International and IDRC. So far we have organised six privacy round tables and drafted the Privacy (Protection) Bill. This month we bring you the latest version of the Privacy (Protection) Bill and an analysis of the six privacy round tables. We are also doing a project on mapping cyber security actors in South Asia and South East Asia with the Citizen Lab, Munk School of Global Affairs, University of Toronto and IDRC. We did an interview with Lawrence Liang on privacy and free speech:

SAFEGUARDS Project
Bill

Privacy (Protection) Bill, 2013: Updated Third Draft (by Bhairav Acharya, September 30, 2013): CIS has been researching privacy in India since 2010 with the objective of raising public awareness around privacy, completing in depth research, and driving a privacy legislation in India. As part of this work, we drafted the Privacy (Protection) Bill, 2013. This is the latest version with changes based on feedback from the Privacy Round Table held on August 24.

Event Reports

A Privacy Meeting with the Federal Trade Commission (co-organised by CIS and the Federal Trade Commission, Imperial Hotel, Janpath, New Delhi, September 20, 2013). Elonnai Hickok participated in this meeting.
The National Privacy Roundtable Meetings (by Bhairav Acharya, September 19, 2013). Bhairav provides an analysis of the six round table meetings held in the cities of New Delhi, Bangalore, Chennai, Mumbai, and Kolkata.

Interview

An Interview with Suresh Ramasubramanian (by Elonnai Hickok, September 6, 2013): Suresh Ramasubramanian from IBM speaks about cyber security and issues in the cloud.

Articles and Blog Entries

India: Privacy in Peril (by Bhairav Acharya, Frontline, July 12, 2013). The article was published in Frontline in July but was mirrored only recently on our website.
Privacy Law Must Fit the Bill (by Sunil Abraham, Deccan Chronicle, September 9, 2013).
Transparency Reports — A Glance on What Google and Facebook Tell about Government Data Requests (by Prachi Arya, September 12, 2013).
The National Cyber Security Policy: Not a Real Policy (by Bhairav Acharya, Observer Research Foundation's Cyber Security Monitor Vol. I, Issue.1, August 2013).
The Central Monitoring System: Some Questions to be Raised in Parliament (by Bhairav Acharya, September 19, 2013).
CIS and International Coalition Calls upon Governments to Protect Privacy (by Elonnai Hickok, September 25, 2013).
An Analysis of the Cases Filed under Section 46 of the Information Technology Act, 2000 for Adjudication in the State of Maharashtra (by Bhairav Acharya, September 30, 2013): This is a brief review of some of the cases related to privacy filed under section 46 of the Information Technology Act, 2000 seeking adjudication for alleged contraventions of the Act in the State of Maharashtra.

Media Coverage

Gmail ban looms for Indian gov't workers (by Beatrice Thomas, Arabian Business.com, September 1, 2013): The article says that government would ban Gmail for official communication in light of cyber spying by the US. Sunil Abraham agrees with the ban.
Indien: Regierung will Nutzung von US-Mailprovidern in Verwaltungen verbieten (Netzpolitik, September 3, 2013). Sunil Abraham was quoted in this German newspaper.
A dangerous trend: social media adds fire to Muzaffarnagar clashes (by Zia Haq, The Hindustan Times, September 9, 2013). The article speaks about censorship in wake of publication of malicious content. In such cases the government has a legitimate reason to censor speech, says Sunil Abraham.
Three Years Later, IPaidABribe.com Pays Off (by Jessica McKenzie, TechPresident, September 23, 2013): The article talks about IPaidABribe.com, an online portal focusing on civic engagement and improving governance. But the real problem in India is “high ticket bribes...at the top of the pyramid,” Sunil Abraham was quoted as having said.
Indian biometric ID plan faces court hurdle (by John Ribeiro, Computer World, September 25, 2013): The article talks about Aadhar (India’s biometric system). The Aadhaar number now allows different agencies including private organizations to collect and exchange data between them, says Pranesh Prakash.

Upcoming Event

Privacy Round Table, New Delhi (co-organised by FICCI, DSCI and CIS, FICCI Federation House, Tansen Marg, New Delhi, October 19, 2013).

Event Organised

Public Law and Jurisprudential Issues of Privacy (CIS, Bangalore, September 27, 2013): Abhayraj Naik, a graduate from the National Law School of India University, Bangalore, and the Yale Law School gave a talk on public law and jurisprudential issues related to privacy.

Events Participated In

Young Scholar Tutorials (organised by Communication Policy Research South, September 3-4, 2013). Nehaa Chaudhari participated in this event.
Privacy and Surveillance in India (organised by the Centre for Culture, Media and Governance, Jamia Millia Islamia, New Delhi, September 18, 2013). Sunil Abraham gave a talk.
Syllabus: “Policy and regulation conducive to rapid ICT sector growth in Myanmar: An introductory course” (organised by LIRNEasia in collaboration with Myanmar ICT Development Organization, and with support from the Open Society Foundation and the International Development Research Centre of Canada, September 28 – October 5, 2013). Sunil Abraham is supporting Prof. Samarajiva on the last optional day of this course in Yangon.
Congress on Privacy and Surveillance (organised by Swiss Federal Institute of Technology, Lausanne, September 30, 2013). Maria Xynou participated in this event.

Cyber Security Project
Video Interview

Part 10: Interview with Lawrence Liang (September 10, 2013): In the ecology of online communication it is crucial for us to look at right to privacy and right to free speech as inseparable.

Forthcoming Events

11th India Knowledge Summit 2013 (organised by ASSOCHAM India, Hotel Shangri-La, New Delhi, October 14-15, 2013). CIS is one of the organisations supporting this event.
CYFY 2013: India Conference on Cyber Security and Cyber Governance (organised by Observer Research Foundation and the Federation of Indian Chambers of Commerce and Industry, Oberoi Hotel, New Delhi, October 14-15, 2013). Sunil Abraham will participate in this event as a speaker.

Knowledge Repository on Internet Access
CIS in partnership with the Ford Foundation is executing a project to create a knowledge repository on Internet and society. This repository will comprise content targeted primarily at civil society with a view to enabling their informed participation in the Indian Internet and ICT policy space. The repository is available at www.internet-institute.in.

Modules

International Telecommunication Union (by Snehashish Ghosh and Anirudh Sridhar, September 30, 2013).
Internet Corporation for Assigned Names and Numbers (ICANN) (by Snehashish Ghosh and Anirudh Sridhar, September 30, 2013).

Telecom

Shyam Ponappa, a Distinguished Fellow at CIS is a regular columnist with the Business Standard. The articles published on his blog Organizing India Blogspot is mirrored on our website:

Newspaper Column

Regrouping for Growth - Interest Rates – III (originally published in the Business Standard on September 4, 2013 and mirrored in Organizing India Blogspot on September 6, 2013).

Digital Natives

Digital Natives with a Cause? examines the changing landscape of social change and political participation in light of the role that young people play through digital and Internet technologies, in emerging information societies. Consolidating knowledge from Asia, Africa and Latin America, it builds a global network of knowledge partners who critically engage with discourse on youth, technology and social change, and look at alternative practices and ideas in the Global South:
Event Report

Bangalore + Sustainability Summit (organized by Ashoka India, Green Lungi and IDEX, September 21, 2013, CIS, Bangalore): Denisse Albornoz has summarised the happenings in this report.

Media Coverage

Youths brainstorm at social summit (The Times of India, September 21, 2013): A coverage of the Bangalore + Sustainability Summit hosted at CIS.

Blog Entry + Video

Revealing Protesters on the Fringe: Crucifixion Protest in Paraguay (by Denisse Albornoz, September 20, 2013): Denisse provides an analysis of the crucifix protest in Paraguay in the light of Nishant Shah’s piece: Whose Change is it Anyway?.

Digital Humanities

CIS is building research clusters in the field of Digital Humanities. The Digital will be used as a way of unpacking the debates in humanities and social sciences and look at the new frameworks, concepts and ideas that emerge in our engagement with the digital. The clusters aim to produce and document new conversations and debates that shape the contours of Digital Humanities in Asia:

Interview

Thinking Digital Beyond Tools: Interview with Dr. Nishant Shah (by Noopur Raval, HASTAC, September 10, 2013): Nishant speaks about his interest in digital studies, the future of humanities, and his HASTAC experience.

Event Participated In

Reclaim Open Learning Symposium (organized by the Digital Media and Learning Research Hub, University of California Humanities Research Institute, UC Irvine, September 26-27, 2013): Nishant Shah participated in this event as a panelist.

About CIS
The Centre for Internet and Society is a non-profit research organization that works on policy issues relating to freedom of expression, privacy, accessibility for persons with disabilities, access to knowledge and IPR reform, and openness (including open government, FOSS, open standards, etc.), and engages in academic research on digital natives and digital humanities.

Follow us elsewhere

Twitter: https://twitter.com/CISA2K

Facebook group: https://www.facebook.com/cisa2k

Visit us at: https://meta.wikimedia.org/wiki/India_Access_To_Knowledge

E-mail: a2k@cis-india.org

Support Us
Please help us defend consumer / citizen rights on the Internet! Write a cheque in favour of ‘The Centre for Internet and Society’ and mail it to us at No. 194, 2nd ‘C’ Cross, Domlur, 2nd Stage, Bengaluru – 5600 71.

Request for Collaboration:
We invite researchers, practitioners, and theoreticians, both organisationally and as individuals, to collaboratively engage with Internet and society and improve our understanding of this new field. To discuss the research collaborations, write to Sunil Abraham, Executive Director, at sunil@cis-india.org or Nishant Shah, Director – Research, at nishant@cis-india.org. To discuss collaborations on Indic language wikipedia, write to T. Vishnu Vardhan, Programme Director, A2K, at vishnu@cis-india.org

CIS is grateful to its donors, Wikimedia Foundation, Ford Foundation, Privacy International, UK, Hans Foundation and the Kusuma Trust which was founded by Anurag Dikshit and Soma Pujari, philanthropists of Indian origin, for its core funding and support for most of its projects.

For more details visit https://cis-india.org/about/newsletters/september-2013-bulletin

A Privacy Meeting with the Federal Trade Commission in New Delhi

elonnai — 2013-10-03T10:25:33Z

On September 20, the Centre for Internet and Society held a roundtable meeting with Betsy Broder, Counsel for International Consumer Protection, and Sarah Schroeder, Attorney, Bureau of Consumer Protection, Federal Trade Commission (FTC), United States. The meeting took place at the Imperial, Janpath, New Delhi and discussed both the U.S framework to privacy and potential frameworks and challenges to privacy in India.

As a note, thoughts shared during the meeting represented personal perspectives, and did not constitute the official position of the Federal Trade Commission.

When explaining the U.S regulatory framework for privacy the FTC attorneys highlighted that the United States does not have comprehensive privacy legislation, like in Europe, but instead has sectoral laws that address different aspects of privacy. For example, the Fair Credit Reporting Act maintains confidentiality of consumer credit report information, the Gramm Leach Bliley Act imposes privacy and security requirements for financial institutions, HIPAA applies to patient health information, and the Children’s Online Privacy Protection Act prevents the collection and posting of personal information from minors. It was discussed that the sectoral model followed by the United States allows for a nuanced balance to be struck between privacy protection and the market. It was noted, however, that some have critiqued the U.S. regulatory framework for lacking clear principles that apply to the commercial world and lay out strong privacy protections for the individual. In light of this, the White House is developing a Privacy Bill of Rights.

The Federal Trade Commission is an independent agency in the United States Government with responsibility for enforcing both consumer protection and competition laws. It is composed of five commissioners, and a staff of roughly 1,000, which includes attorneys and economists. The FTC is primarily a law enforcement agency, but also undertakes policy development through workshops and reports, Consumer education is another key function of the agency.

On the consumer protection side, Congress has directed the FTC to enforce the Federal Trade Commission Act, as well as some more specific statutes, such as those that protect consumers from unwanted telemarketing laws, and the protection of children on line. Its main objectives are to protect consumer interests, and prevent fraud and unfair and deceptive business practices. The FTC carries out its privacy work through its consumer protection mission.

When understanding the FTC’s role in relation to privacy, it is important to understand that the FTC’s jurisdiction applies only to certain industries as defined by Congress. Thus, for example, the FTC does not have jurisdiction over banks or telecommunications.

The most critical part of the FTC’s activities is its law enforcement function. The FTC can investigate an organization if the staff believes that the entity may be involved in conduct that contravenes the FTC Act’s prohibition on unfair or deceptive practices, or another specific privacy law. The FTC has brought a number of privacy-related cases against major companies including Facebook, Google, ChoicePoint, and Twitter. Many of these cases address new challenges brought about by rapidly changing technologies.

The vast majority of the FTC’s actions have been settled with consent judgments. When the statute that the FTC enforces allows for the imposition of a civil penalty, the FTC sets the penalty at a level that ensures that it is fair and provides a deterrent, but will not impose a hardship on the company. As a civil enforcement agency, the FTC cannot seek criminal sanctions. While enforcement is the cornerstone of the FTC’s approach to privacy, the agency also supports self-regulation, where appropriate. In this system the FTC does not pre-approve an organization’s practices or define principles that all companies should abide by as it is felt that every organization is unique and has different needs and abilities, and assigning specific technical standards may stifle innovation.

In the meeting it was also discussed how US privacy laws may apply to overseas companies where they are providing services for US consumers or working on behalf of US companies. For example, under the Gramm Leach Bliley Act the FTC has created the Safeguards Rule, which speaks to how financial data by financial institutions must be handled and protected. This Rule applies to companies overseas if the company is performing work for US companies or US consumers. In other words, a US company cannot avoid compliance by outsourcing its work to an off shore organization. Discussions during the meeting also focused on consent and the key role that context, accessibility, and timing play in ensuring individuals have the ability to provide informed consent. Some of the attendees suggested that this practice could be greatly improved in India. For example, currently in India there are companies that only provide consumers access to the company privacy policy after an individual has consented and signed up to the service. When asked about the challenges to privacy that exist in India, many shared that, culturally, there is a different understanding of privacy in India than in many western countries.

Other thoughts included that the Indian government is currently imagining privacy regulation as being either fluid and purely self regulatory or being enforced through strict legal provisions. Instead, the government needs to begin to expand the possibilities for a regulatory framework for privacy in India in such a way that allows for strong legal enforcement, and flexible standards. The right to be forgotten was also discussed and it was mentioned that California has proposed a law that will allow individuals to request deletion of information.

For more details visit https://cis-india.org/internet-governance/blog/privacy-meeting-with-ftc-new-delhi

Privacy (Protection) Bill, 2013: Updated Third Draft

bhairav — 2013-10-01T12:25:43Z

The Centre for Internet and Society has been researching privacy in India since 2010 with the objective of raising public awareness around privacy, completing in depth research, and driving a privacy legislation in India. As part of this work, we drafted the Privacy (Protection) Bill, 2013.

This research is being undertaken as part of the 'SAFEGUARDS' project that CIS is doing with Privacy International and IDRC. The following is the latest version with changes based on the Round Table held on August 24:

[Preamble]

CHAPTER I

Preliminary

1. Short title, extent and commencement. – (1) This Act may be called the Privacy (Protection) Act, 2013.

(2) It extends to the whole of India.

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

2. Definitions. – In this Act and in any rules made thereunder, unless the context otherwise requires, –

(a) “anonymise” means, in relation to personal data, the removal of all data that may, whether directly or indirectly in conjunction with any other data, be used to identify the data subject;

(b) “appropriate government” means, in relation the Central Government or a Union Territory Administration, the Central Government; in relation a State Government, that State Government; and, in relation to a public authority which is established, constituted, owned, controlled or substantially financed by funds provided directly or indirectly –

(i) by the Central Government or a Union Territory Administration, the Central Government;

(ii) by a State Government, that State Government;

(c) “authorised officer” means an officer, not below the rank of a Gazetted Officer, of an All India Service or a Central Civil Service, as the case may be, who is empowered by the Central Government, by notification in the Official Gazette, to intercept a communication of another person or carry out surveillance of another person under this Act;

(d) “biometric data” means any data relating to the physical, physiological or behavioural characteristics of a person which allow their unique identification including, but not restricted to, facial images, finger prints, hand prints, foot prints, iris recognition, hand writing, typing dynamics, gait analysis and speech recognition;

(e) “Chairperson” and “Member” mean the Chairperson and Member appointed under sub-section (1) of section 17;

(f) “collect”, with its grammatical variations and cognate expressions, means, in relation to personal data, any action or activity that results in a data controller obtaining, or coming into the possession or control of, any personal data of a data subject;

(g) “communication” means a word or words, spoken, written or indicated, in any form, manner or language, encrypted or unencrypted, meaningful or otherwise, and includes visual representations of words, ideas, symbols and images, whether transmitted or not transmitted and, if transmitted, irrespective of the medium of transmission;

(h) “competent organisation” means an organisation or public authority listed in the Schedule;

(i) “data controller” means a person who, either alone or jointly or in concert with other persons, determines the purposes for which and the manner in which any personal data is processed;

(j) “data processor” means any person who processes any personal data on behalf of a data controller;

(k) “Data Protection Authority” means the Data Protection Authority constituted under sub-section (1) of section 17;

(l) “data subject” means a person who is the subject of personal data;

(m) “deoxyribonucleic acid data” means all data, of whatever type, concerning the characteristics of a person that are inherited or acquired during early prenatal development;

(n) “destroy”, with its grammatical variations and cognate expressions, means, in relation to personal data, to cease the existence of, by deletion, erasure or otherwise, any personal data;

(o) “disclose”, with its grammatical variations and cognate expressions, means, in relation to personal data, any action or activity that results in a person who is not the data subject coming into the possession or control of that personal data;

(p) “intelligence organisation” means an intelligence organisation under the Intelligence Organisations (Restriction of Rights) Act, 1985 (58 of 1985);

(q) “interception” or “intercept” means any activity intended to capture, read, listen to or understand the communication of a person;

(r) “personal data” means any data which relates to a natural person if that person can, whether directly or indirectly in conjunction with any other data, be identified from it and includes sensitive personal data;

(s) “prescribed” means prescribed by rules made under this Act;

(t) “process”, with its grammatical variations and cognate expressions, means, in relation to personal data, any action or operation which is performed upon personal data, whether or not by automated means including, but not restricted to, organisation, structuring, adaptation, modification, retrieval, consultation, use, alignment or destruction;

(u) “receive”, with its grammatical variations and cognate expressions, means, in relation to personal data, to come into the possession or control of any personal data;

(v) “sensitive personal data” means personal data as to the data subject’s –

(i) biometric data;

(ii) deoxyribonucleic acid data;

(iii) sexual preferences and practices;

(iv) medical history and health;

(v) political affiliation;

(vi) commission, or alleged commission, of any offence;

(vii) ethnicity, religion, race or caste; and

(viii) financial and credit information.

(w) “store”, with its grammatical variations and cognate expressions, means, in relation to personal data, to retain, in any form or manner and for any purpose or reason, any personal data;

(x) “surveillance” means any activity intended to watch, monitor, record or collect, or to enhance the ability to watch, record or collect, any images, signals, data, movement, behaviour or actions, of a person, a group of persons, a place or an object, for the purpose of obtaining information of a person;

and all other expressions used herein shall have the meanings ascribed to them under the General Clauses Act, 1897 (10 of 1897) or the Code of Criminal Procedure, 1973 (2 of 1974), as the case may be.

CHAPTER II

Regulation of Personal Data

3. Regulation of personal data. – Notwithstanding anything contained in any other law for time being in force, no person shall collect, store, process, disclose or otherwise handle any personal data of another person except in accordance with the provisions of this Act and any rules made thereunder.

4. Exemption. – Nothing in this Act shall apply to the collection, storage, processing or disclosure of personal data for personal or domestic use.

CHAPTER III

Protection of Personal Data

5. Regulation of collection of personal data. – (1) No personal data of a data subject shall be collected except in conformity with section 6 and section 7.

(2) No personal data of a data subject may be collected under this Act unless it is necessary for the achievement of a purpose of the person seeking its collection.

(3) Subject to section 6 and section 7, no personal data may be collected under this Act prior to the data subject being given notice, in such and form and manner as may be prescribed, of the collection.

6. Collection of personal data with prior informed consent. – (1) Subject to sub-section (2), a person seeking to collect personal data under this section shall, prior to its collection, obtain the consent of the data subject.

(2) Prior to a collection of personal data under this section, the person seeking its collection shall inform the data subject of the following details in respect of his personal data, namely: –

(a) when it will be collected;

(b) its content and nature;

(d) the manner in which it may be accessed, checked and modified;

(e) the security practices, privacy policies and other policies, if any, to which it will be subject;

(f) the conditions and manner of its disclosure; and

(g) the procedure for recourse in case of any grievance in relation to it.

(3) Consent to the collection of personal data under this section may be obtained from the data subject in any manner or medium but shall not be obtained as a result of a threat, duress or coercion:

Provided that the data subject may, at any time after his consent to the collection of personal data has been obtained, withdraw the consent for any reason whatsoever and all personal data collected following the original grant of consent shall be destroyed forthwith:

Provided that the person who collected the personal data in respect of which consent is subsequently withdrawn may, if the personal data is necessary for the delivery of any good or the provision of any service, not deliver that good or deny that service to the data subject who withdrew his grant of consent.

7. Collection of personal data without prior consent. – Personal data may be collected without the prior consent of the data subject if it is –

(a) necessary for the provision of an emergency medical service to the data subject;

(b) required for the establishment of the identity of the data subject and the collection is authorised by a law in this regard;

(d) necessary to prevent, investigate or prosecute a cognisable offence.

8. Regulation of storage of personal data. – (1) No person shall store any personal data for a period longer than is necessary to achieve the purpose for which it was collected or received, or, if that purpose is achieved or ceases to exist for any reason, for any period following such achievement or cessation.

(2) Save as provided in sub-section (3), any personal data collected or received in relation to the achievement of a purpose shall, if that purpose is achieved or ceases to exist for any reason, be destroyed forthwith.

(3) Notwithstanding anything contained in this section, any personal data may be stored for a period longer than is necessary to achieve the purpose for which it was collected or received, or, if that purpose has been achieved or ceases to exist for any reason, for any period following such achievement or cessation, if –

(a) the data subject grants his consent to such storage prior to the purpose for which it was collected or received being achieved or ceasing to exist;

(b) it is adduced for an evidentiary purpose in a legal proceeding; or

Provided that only that amount of personal data that is necessary to achieve the purpose of storage under this sub-section shall be stored and any personal data that is not required to be stored for such purpose shall be destroyed forthwith:

Provided further that any personal data stored under this sub-section shall, to the extent possible, be anonymised.

9. Regulation of processing of personal data. – (1) No person shall process any personal data that is not necessary for the achievement of the purpose for which it was collected or received.

(2) Save as provided in sub-section (3), no personal data shall be processed for any purpose other than the purpose for which it was collected or received.

(3) Notwithstanding anything contained in this section, any personal data may be processed for a purpose other than the purpose for which it was collected or received if –

(a) the data subject grants his consent to the processing and only that amount of personal data that is necessary to achieve the other purpose is processed;

(b) it is necessary to perform a contractual duty to the data subject;

(d) it necessary to prevent, investigate or prosecute a cognisable offence.

10. Transfer of personal data for processing. – (1) Subject to the provisions of this section, personal data that has been collected in conformity with this Act may be transferred by a data controller to a data processor, whether located in India or otherwise, if the transfer is pursuant to an agreement that explicitly binds the data processor to same or stronger measures in respect of the storage, processing, destruction, disclosure and other handling of the personal data as are contained in this Act.

(2) No data processor shall process any personal data transferred under this section except to achieve the purpose for which it was collected.

(3) A data controller that transfers personal data under this section shall remain liable to the data subject for the actions of the data processor.

11. Security of personal data and duty of confidentiality. – (1) No person shall collect, receive, store, process or otherwise handle any personal data without implementing measures, including, but not restricted to, technological, physical and administrative measures, adequate to secure its confidentiality, secrecy, integrity and safety, including from theft, loss, damage or destruction.

(2) Data controllers and data processors shall be subject to a duty of confidentiality and secrecy in respect of personal data in their possession or control.

(3) Without prejudice to the provisions of this section, a data controller or data processor shall, if the confidentiality, secrecy, integrity or safety of personal data in its possession or control is violated by theft, loss, damage or destruction, or as a result of any disclosure contrary to the provisions of this Act, or for any other reason whatsoever, notify the data subject, in such form and manner as may be prescribed, forthwith.

12. Regulation of disclosure of personal data. – Subject to section 10, section 13 and section 14, no person shall disclose, or otherwise cause any other person to receive, the content or nature of any personal data that has been collected in conformity with this Act.

13. Disclosure of personal data with prior informed consent. – (1) Subject to sub-section (2), a data controller or data processor seeking to disclose personal data under this section shall, prior to its disclosure, obtain the consent of the data subject.

(2) Prior to a disclosure of personal data under this section, the data controller or data processor, as the case may be, seeking to disclose the personal data, shall inform the data subject of the following details in respect of his personal data, namely: –

(a) when it will be disclosed;

(b) the purpose of its disclosure;

(d) the procedure for recourse in case of any grievance in relation to it.

14. Disclosure of personal data without prior consent. – (1) Subject to sub-section (2), personal data may be disclosed without the prior consent of the data subject if it is necessary –

(a) to prevent a reasonable threat to national security, defence or public order; or

(b) to prevent, investigate or prosecute a cognisable offence.

(2) No data controller or data processor shall disclose any personal data unless it has received an order in writing from a police officer not below the rank of [___] in such form and manner as may be prescribed:

Provided that an order for the disclosure of personal data made under this sub-section shall not require the disclosure of any personal data that is not necessary to achieve the purpose for which the disclosure is sought:

Provided further that the data subject shall be notified, in such form and manner as may be prescribed, of the disclosure of his personal data, including details of its content and nature, and the identity of the police officer who ordered its disclosure, forthwith.

15. Quality and accuracy of personal data. – (1) Each data controller and data processor shall, to the extent possible, ensure that the personal data in its possession or control, is accurate and, where necessary, is kept up to date.

(2) No data controller or data processor shall deny a data subject whose personal data is in its possession or control the opportunity to review his personal data and, where necessary, rectify anything that is inaccurate or not up to date.

(3) A data subject may, if he finds personal data in the possession or control of a data controller or data processor that is not necessary to achieve the purpose for which it was collected, received or stored, demand its destruction, and the data controller shall destroy, or cause the destruction of, the personal data forthwith.

16. Special provisions for sensitive personal data. – Notwithstanding anything contained in this Act and the provisions of any other law for the time being in force –

(a) no person shall store sensitive personal data for a period longer than is necessary to achieve the purpose for which it was collected or received, or, if that purpose has been achieved or ceases to exist for any reason, for any period following such achievement or cessation;

(b) no person shall process sensitive personal data for a purpose other than the purpose for which it was collected or received;

(c) no person shall disclose sensitive personal data to another person, or otherwise cause any other person to come into the possession or control of, the content or nature of any sensitive personal data, including any other details in respect thereof.

CHAPTER IV

The Data Protection Authority

17. Constitution of the Data Protection Authority. – (1) The Central Government shall, by notification, constitute, with effect from such date as may be specified therein, a body to be called the Data Protection Authority consisting of a Chairperson and not more than four other Members, to exercise the jurisdiction and powers and discharge the functions and duties conferred or imposed upon it by or under this Act.

(2) The Chairperson shall be a person who has been a Judge of the Supreme Court:

Provided that the appointment of the Chairperson shall be made only after consultation with the Chief Justice of India.

(3) Each Member shall be a person of ability, integrity and standing who has a special knowledge of, and professional experience of not less than ten years in privacy law and policy.

18. Term of office, conditions of service, etc. of Chairperson and Members. – (1) Before appointing any person as the Chairperson or Member, the Central Government shall satisfy itself that the person does not, and will not, have any such financial or other interest as is likely to affect prejudicially his functions as such Chairperson or Member.

(2) The Chairperson and every Member shall hold office for such period, not exceeding five years, as may be specified in the order of his appointment, but shall be eligible for reappointment:

Provided that no person shall hold office as the Chairperson or Member after he has attained the age of sixty-seven years.

(3) Notwithstanding anything contained in sub-section (2), the Chairperson or any Member may –

(a) by writing under his hand resign his office at any time;

(b) be removed from office in accordance with the provisions of section 19 of this Act.

(4) A vacancy caused by the resignation or removal of the Chairperson or Member under sub-section (3) shall be filled by fresh appointment.

(5) In the event of the occurrence of a vacancy in the office of the Chairperson, such one of the Members as the Central Government may, by notification, authorise in this behalf, shall act as the Chairperson till the date on which a new Chairperson, appointed in accordance with the provisions of this Act, to fill such vacancy, enters upon his office.

(6) When the Chairperson is unable to discharge his functions owing to absence, illness or any other cause, such one of the Members as the Chairperson may authorise in writing in this behalf shall discharge the functions of the Chairperson, till the date on which the Chairperson resumes his duties.

(7) The salaries and allowances payable to and the other terms and conditions of service of the Chairperson and Members shall be such as may be prescribed:

Provided that neither the salary and allowances nor the other terms and conditions of service of the Chairperson and any member shall be varied to his disadvantage after his appointment.

19. Removal of Chairperson and Members from office in certain circumstances. – The Central Government may remove from office the Chairperson or any Member, who –

(a) is adjudged an insolvent; or

(b) engages during his term of office in any paid employment outside the duties of his office; or

(d) is of unsound mind and stands so declared by a competent court; or

(e) is convicted for an offence which in the opinion of the President involves moral turpitude; or

(f) has acquired such financial or other interest as is likely to affect prejudicially his functions as a Chairperson or Member, or

(g) has so abused his position as to render his continuance in offence prejudicial to the public interest.

20. Functions of the Data Protection Authority. – (1) The Chairperson may inquire, suo moto or on a petition presented to it by any person or by someone acting on his behalf, in respect of any matter connected with the collection, storage, processing, disclosure or other handling of any personal data and give such directions or pass such orders as are necessary for reasons to be recorded in writing.

(2) Without prejudice to the generality of the foregoing provision, the Data Protection Authority shall perform all or any of the following functions, namely –

(a) review the safeguards provided by or under this Act and other law for the time being in force for the protection of personal data and recommend measures for their effective implementation;

(b) review any measures taken by any entity for the protection of personal data and take such further action is it deems fit;

(c) review any action, policy or procedure of any entity to ensure compliance with this Act and any rules made hereunder;

(d) formulate, in consultation with experts, norms for the effective protection of personal data;

(e) promote awareness and knowledge of personal data protection through any means necessary;

(f) undertake and promote research in the field of protection of personal data;

(g) encourage the efforts of non-governmental organisations and institutions working in the field of personal data protection;

(h) publish periodic reports concerning the incidence of collection, processing, storage, disclosure and other handling of personal data;

(i) such other functions as it may consider necessary for the protection of personal data.

(3) Subject to the provisions of any rules prescribed in this behalf by the Central Government, the Data Protection Authority shall have the power to review any decision, judgement, decree or order made by it.

(4) In the exercise of its functions under this Act, the Data Protection Authority shall give such directions or pass such orders as are necessary for reasons to be recorded in writing.

(5) The Data Protection Authority may, in its own name, sue or be sued.

21. Secretary, officers and other employees of the Data Protection Authority. – (1) The Central Government shall appoint a Secretary to the Data Protection Authority to exercise and perform, under the control of the Chairperson such powers and duties as may be prescribed or as may be specified by the Chairperson.

(2) The Central Government may provide the Data Protection Authority with such other officers and employees as may be necessary for the efficient performance of the functions of the Data Protection Authority.

(3) The salaries and allowances payable to and the conditions of service of the Secretary and other officers and employees of the Data Protection Authority shall be such as may be prescribed.

22. Salaries, etc. be defrayed out of the Consolidated Fund of India. – The salaries and allowances payable to the Chairperson and Members and the administrative expenses, including salaries, allowances and pension, payable to or in respect of the officers and other employees of the of the Data Protection Authority shall be defrayed out of the Consolidated Fund of India.

23. Vacancies, etc. not to invalidate proceedings of the Data Protection Authority. – No act or proceeding of the Data Protection Authority shall be questioned on the ground merely of the existence of any vacancy or defect in the constitution of the Data Protection Authority or any defect in the appointment of a person acting as the Chairperson or Member.

24. Chairperson, Members and employees of the Data Protection Authority to be public servants. – The Chairperson and Members and other employees of the Data Protection Authority shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code, 1860 (45 of 1860).

25. Location of the office of the Data Protection Authority. – The offices of the Data Protection Authority shall be in [___] or any other location as directed by the Chairperson in consultation with the Central Government.

26. Procedure to be followed by the Data Protection Authority. – (1) Subject to the provisions of this Act, the Data Protection Authority shall have powers to regulate –

(a) the procedure and conduct of its business;

(b) the delegation to one or more Members of such powers or functions as the Chairperson may specify.

(2) In particular and without prejudice to the generality of the foregoing provisions, the powers of the Data Protection Authority shall include the power to determine the extent to which persons interested or claiming to be interested in the subject-matter of any proceeding before it may be allowed to be present or to be heard, either by themselves or by their representatives or to cross-examine witnesses or otherwise take part in the proceedings:

Provided that any such procedure as may be prescribed or followed shall be guided by the principles of natural justice.

27. Power relating to inquiries. – (1) The Data Protection Authority shall, for the purposes of any inquiry or for any other purpose under this Act, have the same powers as vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying suits in respect of the following matters, namely –

(a) the summoning and enforcing the attendance of any person from any part of India and examining him on oath;

(b) the discovery and production of any document or other material object producible as evidence;

(d) the requisitioning of any public record from any court or office;

(e) the issuing of any commission for the examination of witnesses; and,

(f) any other matter which may be prescribed.

(2) The Data Protection Authority shall have power to require any person, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters as, in the opinion of the Data Protection Authority, may be useful for, or relevant to, the subject matter of an inquiry and any person so required shall be deemed to be legally bound to furnish such information within the meaning of section 176 and section 177 of the Indian Penal Code, 1860 (45 of 1860).

(3) The Data Protection Authority or any other officer, not below the rank of a Gazetted Officer, specially authorised in this behalf by the Data Protection Authority may enter any building or place where the Data Protection Authority has reason to believe that any document relating to the subject matter of the inquiry may be found, and may seize any such document or take extracts or copies therefrom subject to the provisions of section 100 of the Code of Criminal Procedure, 1973 (2 of 1974), in so far as it may be applicable.

(4) The Data Protection Authority shall be deemed to be a civil court and when any offence as is described in section 175, section 178, section 179, section 180 or section 228 of the Indian Penal Code, 1860 (45 of 1860) is committed in the view or presence of the Data Protection Authority, the Data Protection Authority may, after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 1973 (2 of 1974), forward the case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case had been forwarded to him under section 346 of the Code of Criminal Procedure, 1973 (2 of 1974).

28. Decisions of the Data Protection Authority. – (1) The decisions of the Data Protection Authority shall be binding.

(2) In its decisions, the Data Protection Authority has the power to –

(a) require an entity to take such steps as may be necessary to secure compliance with the provisions of this Act;

(b) require an entity to compensate any person for any loss or detriment suffered;

29. Proceedings before the Data Protection Authority to be judicial proceedings. – The Data Protection Authority shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Data Protection Authority shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 and for the purposes of section 196 of the Indian Penal Code, 1860 (45 of 1860).

CHAPTER V

Regulation by Data Controllers and Data Processors

30. Co-regulation by Data Controllers and the Data Protection Authority. – (1) The Data Protection Authority may, in consultation with data controllers, formulate codes of conduct for the collection, storage, processing, disclosure or other handling of any personal data.

(2) No code of conduct formulated under sub-section (1) shall be binding on a data controller unless –

(a) it has received the written approval of the Data Protection Authority; and

(b) it has received the approval, by signature of a director or authorised signatory, of the data controller.

31. Co-regulation without prejudice to other remedies. – Any code of conduct formulated under this chapter shall be without prejudice to the jurisdiction, powers and functions of the Data Protection Authority.

32. Self-regulation by data controllers. – (1) The Data Protection Authority may encourage data controllers and data processors to formulate professional codes of conduct to establish rules for the collection, storage, processing, disclosure or other handling of any personal data.

(2) No code of conduct formulated under sub-section (1) shall be effective unless it is registered, in such form and manner as may be prescribed, by the Data Protection Authority.

(3) The Data Protection Authority shall, for reasons to be recorded in writing, not register any code of conduct formulated under sub-section (1) that is not adequate to protect personal data.

CHAPTER IV

Surveillance and Interception of Communications

33. Surveillance and interception of communication to be warranted. – Notwithstanding anything contained in any other law for the time being in force, no –

(i) surveillance shall be carried out, and no person shall order any surveillance of another person;

(ii) communication shall be intercepted, and no person shall order the interception of any communication of another person; save in execution of a warrant issued under section 36, or an order made under section 38, of this Act.

34. Application for issuance of warrant. – (1) Any authorised officer seeking to carry out any surveillance or intercept any communication of another person shall prefer an application for issuance of a warrant to the Magistrate.

(2) The application for issuance of the warrant shall be in the form and manner prescribed in the Schedule and shall state the purpose for which the warrant is sought.

(3) The application for issuance of the warrant shall be accompanied by –

(i) a report by the authorised officer of the suspicious conduct of the person in respect of whom the warrant is sought, and all supporting material thereof;

(ii) an affidavit of the authorised officer, or a declaration under his hand and seal, that the contents of the report and application are true to the best of his knowledge, information and belief, and that the warrant shall be executed only for the purpose stated in the application and shall not be misused or abused in any manner including to interfere in the privacy of any person;

(iii) details of all warrants previously issued in respect of the person in respect of whom the warrant is sought, if any.

35. Considerations prior to the issuance of warrant. – (1) No warrant shall issue unless the requirements of section 34 and this section have been met.

(2) The Magistrate shall consider the application made under section 34 and shall satisfy himself that the information contained therein sets out –

(i) a reasonable threat to national security, defence or public order; or

(ii) a cognisable offence, the prevention, investigation or prosecution of which is necessary in the public interest.

(3) The Magistrate shall satisfy himself that all other lawful means to acquire the information that is sought by the execution of the warrant have been exhausted.

(4) The Magistrate shall verify the identity of the authorised officer and shall satisfy himself that the application for issuance of the warrant is authentic.

36. Issue of warrant. – (1) Subject to section 34 and section 35, the Magistrate may issue a warrant for surveillance or interception of communication, or both of them.

(2) The Magistrate may issue the warrant in Chambers.

37. Magistrate may reject application for issuance of warrant. – If the Magistrate is not satisfied that the requirements of section 34 and section 35 have been met, he may, for reasons to be recorded in writing, –

(i) refuse to issue the warrant and dispose of the application;

(ii) return the application to the authorised officer without disposing of it;

(iii) pass any order that he thinks fit.

38. Order by Home Secretary in emergent circumstances. – (1) Notwithstanding anything contained in section 35, if the Home Secretary of the appropriate government is satisfied that a grave threat to national security, defence or public order exists, he may, for reasons to be recorded in writing, order any surveillance or interception of communication.

(2) An authorised officer seeking an order for surveillance or interception of communication under this section shall prefer an application to the Home Secretary in the form and manner prescribed in the Schedule and accompanied by the documents required under sub-section (3) of section 34.

(3) No order for surveillance or interception of communication made by the Home Secretary under this section shall be valid upon the expiry of a period of seven days from the date of the order.

(4) Before the expiry of a period of seven days from the date of an order for surveillance or interception of communication made under this section, the authorised officer who applied for the order shall place the application before the Magistrate for confirmation.

39. Duration of warrant or order. – (1) The warrant or order for surveillance or interception of communication shall specify the period of its validity and, upon its expiry, all surveillance and interception of communication, as the case may be, carried out in relation to that warrant or order shall cease forthwith:

Provided that no warrant or order shall be valid upon the expiry of a period of sixty days from the date of its issue.

(2) A warrant issued under section 36, or an order issued under section 38, for surveillance or interception of communication, or both of them, may be renewed by a Magistrate if he is satisfied that the requirements of sub-section (2) of section 35 continue to exist.

40. Duty to inform the person concerned. – Subject to sub-section (2), before the expiry of a period of sixty days from the conclusion of any surveillance or interception of communication carried out under this Act, the authorised officer who carried out the surveillance or interception of communication shall, in writing in such form and manner as may be prescribed, notify, with reference to the warrant of the Magistrate, and, if applicable, the order of the Home Secretary, each person in respect of whom the warrant or order was issued, of the fact of such surveillance or interception and duration thereof.

(2) The Magistrate may, on an application made by an authorised officer in such form and manner as may be prescribed, if he is satisfied that the notification under sub-section (1) would –

(a) present a reasonable threat to national security, defence or public order, or

(b) adversely affect the prevention, investigation or prosecution of a cognisable offence,

for reasons to be recorded in writing addressed to the authorised officer, order that the person in respect of whom the warrant or order of surveillance or interception of communication was issued, not be notified of the fact of such interception or the duration thereof:

41. Security and duty of confidentiality and secrecy. – (1) No person shall carry out any surveillance or intercept any communication of another person without implementing measures, including, but not restricted to, technological, physical and administrative measures, to secure the confidentiality and secrecy of all information obtained as a result of the surveillance or interception of communication, as the case may be, including from theft, loss or unauthorised disclosure.

(2) Any person who carries out any surveillance or interception of any communication, or who obtains any information, including personal data, as a result of surveillance or interception of communication, shall be subject to a duty of confidentiality and secrecy in respect of it.

(3) Every competent organisation shall, before the expiry of a period of one hundred days from the enactment of this Act, designate as many officers as it deems fit as Privacy Officers who shall be administratively responsible for all interceptions of communications carried out by that competent organisation.

42. Disclosure of information. – (1) Save as provided in this section, no person shall disclose to any other person, or otherwise cause any other person to come into the knowledge or possession of, the content or nature of any information, including personal data, obtained as a result of any surveillance or interception carried out under this Act.

(2) Notwithstanding anything contained in this section, if the disclosure of any information, including personal data, obtained as a result of any surveillance or interception of any communication is necessary to –

(a) prevent a reasonable threat to national security, defence or public order, or

(b) prevent, investigate or prosecute a cognisable offence,

an authorised officer may disclose the information, including personal data, to any authorised officer of any other competent organisation.

CHAPTER VI

Offences and penalties

43. Punishment for offences related to personal data. – (1) Whoever, except in conformity with the provisions of this Act, collects, receives, stores, processes or otherwise handles any personal data shall be punishable with imprisonment for a term which may extend to [___] years and may also be liable to fine which may extend to [___] rupees.

(2) Whoever attempts to commit any offence under sub section (1) shall be punishable with the punishment provided for such offence under that sub-section.

(3) Whoever, except in conformity with the provisions of this Act, collects, receives, stores, processes or otherwise handles any sensitive personal data shall be punishable with imprisonment for a term which may extend to [increased for sensitive personal data] years and and may also be liable to fine which may extend to [___] rupees.

(4) Whoever attempts to commit any offence under sub section (3) shall be punishable with the punishment provided for such offence under that sub-section.

44. Abetment and repeat offenders. – (1) Whoever abets any offence punishable under this Act shall, if the act abetted is committed in consequence of the abetment, be punishable with the punishment provided for that offence.

(2) Whoever, having been convicted of an offence under any provision of this Act is again convicted of an offence under the same provision, shall be punishable, for the second and for each subsequent offence, with double the penalty provided for that offence.

45. Offences by companies. – (1) Where an offence under this Act has been committed by a company, every person who, at the time of the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of that offence, and shall be liable to be proceeded against and punished accordingly.

46. Cognisance. – Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offences under section 43, section 44 and section 45 shall be cognisable and non-bailable.

47. General penalty. – Whoever, in any case in which a penalty is not expressly provided by this Act, fails to comply with any notice or order issued under any provisions thereof, or otherwise contravenes any of the provisions of this Act, shall be punishable with fine which may extend to [___] rupees, and, in the case of a continuing failure or contravention, with an additional fine which may extend to [___] rupees for every day after the first during which he has persisted in such failure or contravention.

48. Punishment to be without prejudice to any other action. – The award of punishment for an offence under this Act shall be without prejudice to any other action which has been or which may be taken under this Act with respect to such contravention.

CHAPTER VII

Miscellaneous

49. Power to make rules. – (1) The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for –

[__]

(3) Every rule made under this section shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session for a period of thirty days which may be comprised in one session or in two successive sessions and if before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule, or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

50. Bar of jurisdiction. – (1) On and from the appointed day, no court or authority shall have, or be entitled to exercise, any jurisdiction, powers or authority (except the Supreme Court and a High Court exercising powers under Article 32, Article 226 and Article 227 of the Constitution) in relation to matters specified in this Act.

(2) No order passed under this Act shall be appealable except as provided therein and no civil court shall have jurisdiction in respect of any matter which the Data Protection Authority is empowered by, or under, this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

51. Protection of action taken in good faith. – No suit or other legal proceeding shall lie against the Central Government, State Government, Data Protection Authority, Chairperson, Member or any person acting under the direction either of the Central Government, State Government, Data Protection Authority, Chairperson or Member in respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any rules or any order made thereunder.

52. Power to remove difficulties. – (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order, published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act, as appears to it to be necessary or expedient for removing the difficulty:

Provided that no such order shall be made under this section after the expiry of a period of three years from the commencement of this Act.

(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.

53. Act to have overriding effect. – The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

For more details visit https://cis-india.org/internet-governance/blog/privacy-protection-bill-2013-updated-third-draft

Privacy Round Table, New Delhi (October 2013)

praskrishna — 2013-09-28T02:52:26Z

The Centre for Internet and Society (CIS), Federation of Indian Chambers of Commerce and Industry (FICCI), and DSCI cordially invite you to a "Privacy Round Table" at the FICCI Federation House in Tansen Marg on October 19, 2013.

Click the below links to:

Download the event brochure
Download the latest version of the Draft Privacy Bill

Jacob Kohnstamm, Data Protection Authority, Netherlands and Chairman of the Article 29 Working Party, Chantel Bernier, Assistant Privacy Commissioner, Canada, and Christopher Graham, Information Commissioner, UK will make presentations:

Agenda

Time	Detail
10:00 10:30	Introduction and summary of previous Roundtables
10:30 11:00	“Data Protection in the European Union” Mr. Jacob Kohnstamm, Data Protection Authority, Netherlands and Chairman of the Article 29 Working Party
11:00 11:15	Tea
11:15 12:15	Regulatory Frameworks and Jurisdiction a. Co-Regulation vs. Self Regulation vs. Statutory Regulation b. Applicability of regulatory framework to domestic processing vs. multiple/international jurisdictions
12:15 12:45	“An Overview of the Canadian Privacy Regime” Ms. Chantal Bernier, Assistant Privacy Commissioner, Canada
12:15 13:30	The Privacy Commissioner a. Composition of the Office of the Privacy Commissioner (officers, funding, organizational structure) b. Powers of the Privacy Commissioner (investigation, audit, privacy impact assessment etc) c. Functions of the Office of the Privacy Commissioner
13:30 14:30	Lunch
14:30 15:30	Rights of the individual and exceptions to the right to privacy a. Rights of the individual including: notice, access, deletion etc. b. Exceptions to the right to privacy: national security, public order, public interest, prevention and detection of crime etc.
15:30 16:00	“An overview of the Privacy Regime in the UK” Mr. Christopher Graham, Information Commissioner, UK
16:00 16:15	Tea
16:15 17:00	Defining and protecting personal data and personal sensitive data a. Definitions and distinctions between personal data vs personal sensitive data b. Levels of protection for personal data vs. personal sensitive data c. Penalty and remedy for breach of personal data vs. personal sensitive data
17:00 18:00	Penalty and Redress a. Forms and extent of penalty: fine, public notice, shut down of services etc. b. Forms of redress for the individual c. Enforcement of penalty and redress

The Speakers

Jacob Kohnstamm	Before his appointment as Chairman of the Dutch Data Protection Authority in 2004, Jacob Kohnstamm was active in Dutch politics as member of the Lower House of the Dutch Parliament, as State Secretary for Internal Affairs and as member of the Senate of the Dutch Parliament (between 1981 and 2004). Before that, he worked as a lawyer in Amsterdam. Since February 2010, Jacob Kohnstamm is Chairman of the Art. 29 Working Party of European Data Protection Authorities. Since November 2011, Jacob Kohnstamm is also Chairman of the Executive Committee of the International Conference of Data Protection and Privacy Commissioners.
Chantal Bernier	Chantal Bernier was appointed Assistant Privacy Commissioner of Canada in December 2008. Ms. Bernier started her career in the federal government as a lawyer in the Department of Justice, Canada. She went on to hold a directorship at the Privy Council Office before being appointed Assistant Deputy Minister at Indian and Northern Affairs Canada, and later on at Public Safety Canada. She holds a Bachelor of Civil Law from the University of Sherbrooke and a Masters in Public International Law from the London School of Economics and Political Science.
Christopher Graham	Christopher Graham became UK Information Commissioner in June 2009, with responsibility for overseeing the Freedom of Information Act and Data Protection Act regimes — upholding information rights in the public interest, promoting openness by public bodies and data privacy for individuals. He is the Vice Chair of the Article 29 Working Party of the European Data Protection Authorities. Christopher was the director general of the Advertising Standards Authority (ASA) from April 2000 to June 2009. From 2003-5, he was chairman of the European Advertising Standards Alliance (EASA), the federation of advertising self-regulatory bodies across the EU Single Market. Prior to joining the ASA, Christopher was for three years Secretary of the BBC. Christopher first joined the broadcaster as a news trainee in 1973. He was a Current Affairs Producer for BBC Radio and TV before becoming Managing Editor of News Programmes for TV and Radio.

Confirmations and RSVP

Please send your email confirmations for attending the Delhi Privacy Round Table on October 19, 2013, to Elonnai Hickok (elonnai@cis-india.org)

For more details visit https://cis-india.org/internet-governance/events/privacy-round-table-delhi-october-19-2013

11th India Knowledge Summit 2013

praskrishna — 2013-09-26T07:15:29Z

The Associated Chambers of Commerce and Industry in India (ASSOCHAM) is organizing the 11th Knowledge Summit 2013 in Hotel Shangri-La, New Delhi on October 14 and 15, 2013. The Centre for Internet and Society is supporting this event.

Click to read the original published by ASSOCHAM here , read the tentative agenda here and the event brochure here.

The lack of a national-level doctrine has created an environment where we are entirely reactive in our cyber posture. Indeed, battlefield transcends physical borders and boundaries. The power of a nation-state is not required to inflict widespread damage to critical infrastructure systems; a single malicious actor can wreak havoc. The starkest difference, however, is that today both the private sector and individual citizens have unprecedented access to a myriad of infrastructure systems that can provide entry into sensitive systems – yet they are largely unaware of, and unaccountable for, their responsibilities in defending them.

As cyber networks rapidly transition from a mere utility to the undercurrent of our entire societal infrastructure, this reliance becomes a vulnerability. The modern Cyber Era demands a national-level doctrine that can be adopted by government agencies, armed forces, private sector organizations and individual citizens alike to establish a collective sense of purpose for our Cyber Security.

The Chamber is providing a forum to bring executive leaders, policymakers and academia together with the scientists and practitioners that intimately understand cyber technology to collaborate and begin a debate about the complex issues.

The time has come when we should consider not only the military impact of the new cyber world, but also what role cyber defense will hold in shaping the future of our country’s economy, education, foreign affairs policies and critical infrastructure initiatives. Only then can our government, industry, and private citizens align under common goals to shape a safe and prosperous future.

ASSOCHAM India's Apex Chamber for Commerce & Industry was set up in 1920. Today the Chamber is proud to have more than 450,000 Companies as it's esteemed Member which includes many of the big global technology companies.

ASSOCHAM is privileged to be a Member of the “Cyber Regulation Advisory Committee” set up by Ministry of Communications and IT, and the Joint Working Group (JWG) on Cyber Security set up by the National Security Council Secretariat, Government of India.

The ASSOCHAM’s flagship program the Annual INDIA KNOWLEDGE SUMMIT, organized since 1999 has been Addressed in the past by Noble Laureates, as the Distinguished ‘Key Note Speaker’ including – Dr. Craig Venter, Sir Harry Kroto, Prof. Aaron Ciechanover, Dr. Raj Reddy, Dr. A P J Abdul Kalam, Dr. Kirsty Duncan, Prof. John A Pickett to name a few.

This year the 11th INDIA KNOWLEDGE SUMMIT is being organized from 14-15 October, 2013 in Hotel Shangri-La, New Delhi.

The Theme for this year’s Summit is “Cyber Era - Securing the Future”.

Registration Fees:

International Delegates: $ 200/- for both days
Indian Delegates: Rs. 5,000/- per day
Students: Rs. 2,000/- per day
The Delegate Registration Fee include:
Tea & Coffee
Copy of Background Paper /
Copy of Workshop Study Material

For more details please contact:

Ajay Sharma, Senior Director, M: 9899188488 , eMail: ajay.sharma@assocham.com
Varun Aggarwal, Joint Director, M: 9910613815 , eMail: varun.aggarwal@assocham.com
Himanshu Rewaria, Executive, M: 9654251077 , eMail: himanshu.rewaria@assocham.com
Sahil Goswami Executive, M: 9871962311 , eMail: sahil.goswami@assocham.com

Corporate Office
The Associated Chambers of Commerce and Industry of India
ASSOCHAM Corporate Office, 5, Sardar Patel Marg
Chanakyapuri, New Delhi – 110021
Phone: 46550555 (Hunting Line)
Fax: 01123017008/9

Email: assocham@nic.in

For more details visit https://cis-india.org/news/eleventh-india-knowledge-summit-2013

CYFY 2013: India Conference on Cyber Security and Cyber Governance

praskrishna — 2013-09-26T06:50:15Z

The Observer Research Foundation in collaboration with the Federation of Indian Chambers of Commerce and Industry is holding the India Conference on Cyber Security and Cyber Governance at the Oberoi Hotel in New Delhi on October 14 and 15, 2013. Sunil Abraham will participate in this event as a speaker.

Click to download the full details in the event brochure.

Shri Kapil Sibal, Minister of Communications & Technology will give the inaugural address. Shri Shivshankar Menon, National Security Advisor, Government of India will give the keynote address. Shri Shashi Tharoor, Minister of State, Human Resource Development, Government of India will give the dinner table address on October 14.

On the second day, October 15, Minister Jaak Aaviksoo will give the keynote address and Shri Nehchal Sandhu, Deputy National Advisor, Government of India will give the valedictory address.

List of Speakers

Kapil Sibal, Minister for Communications and Information Technology, India
Shivshankar Menon, National Security Advisor, Government of India
Shashi Tharoor, Minister of State for Human Resource Development, India
Nehchal Sandhu, Deputy National Security Advisor, Government of India
A.P. Shah, Former Chief Justice, Delhi High Court
Arvind Gupta, Director General, Institute for Defence Studies and Analyses, India
Ashish Chauhan, CEO, Bombay Stock Exchange
C. Raja Mohan, Distinguished Fellow, ORF
Christopher Painter, Office of the Coordinator for Cyber Issues, Department Of State, USA
Dirk Brengelmann, Commissioner for International Cyber Policy, Federal Foreign Office, Germany
Eric H. Loeb, Vice President, International External Affairs, AT&T
Gabriel Siboni, Director, Cyber Warfare Program, Institute for National Security Studies, Tel Aviv University, Israel
Jaak Aaviksoo, Minister of Education and Research of the Republic of Estonia
Jamie Shea, Deputy Assistant Secretary General, Emerging Security Challenges, NATO
Joe Sullivan, CSO, Facebook
John Mallery, Research Scientist, MIT Computer Science & Artificial Intelligence Laboratory, USA
Maurizio Martellini, Secretary General, Landau Network-Centro Volta and IWG Executive Secretary, Italy
Michael Cheatham, Head U.S. Representative Office, Indo-US Science and. Technology Forum, USA
M.M.Oberoi, Indian Police Service, Joint commissioner of Police, Delhi Police, Government of India
Oleg Demidov, The Russian Center for Policy Studies, Russia
Peter Grabosky, Researcher, Australian National University, Australia
Prakash Nagpal, Senior Vice President, Product Marketing and Marketing, Narus
Rajan Mathews, Director General, Cellular Operators Association of India
Ram Narain, Deputy Director General (Security), Department of Telecommunication (DoT), Government of India
Sandro Gaycken, Freie Universität Berlin, Institute of Computer Science, Germany
Sean Kanuck, National Intelligence Officer for Cyber Issues, Office of the Director of National Intelligence, USA
Sunil Abraham, Executive Director, Centre for Internet and Society, Bangalore
Vijay Madan, Chief Mentor, Tata Teleservices (former Director, C-DOT), India
Vivke Lall, President & CEO, Reliance Industries Limited

For more details visit https://cis-india.org/news/india-conference-on-cyber-security-and-cyber-governance

Indian biometric ID plan faces court hurdle

praskrishna — 2013-10-03T10:58:31Z

Supreme Court in India rules -- for now -- against plan to make biometric ID mandatory for receiving services.

This article by John Ribeiro was published in Computer World on September 25, 2013. Pranesh Prakash is quoted.

A controversial biometric project in India, which could require people to produce their biometric IDs to collect government subsidies, has received a significant setback from the country's Supreme Court.

The court ruled this week in an interim order that people cannot be required to have the controversial Aadhaar identification to collect state subsidies, even as the Unique Identification Authority of India (UIDAI), the government agency that manages the project, has been trying to promote the Aadhaar number as proof of identity for a variety of services including banking.

The UIDAI has said that the scheme is voluntary, but some states and agencies have attempted to link the identification to the implementation of programs such as cash subsidies for cooking gas that benefit even the middle and richer classes.

"I signed up for Aadhaar only to ensure that I continue to get a gas cylinder at reasonable rates," said an executive in Bangalore who had queued up a few months ago for an Aadhaar number. The state of Maharashtra, for example, aims to be the first state in the country to roll out Aadhaar-linked subsidy transfers to LPG (liquified petroleum gas) consumers across all the districts in the state.

Pending a final order, the court ruled that "....no person should suffer for not getting the Adhaar card inspite of the fact that some authority had issued a circular making it mandatory...."

UIDAI Chairman Nandan Nilekani did not immediately agree to discuss the court order.

The Aadhaar project is the result of an executive order, and is not backed by a law passed by India's Parliament, so its legality can be in question, said Pavan Duggal, a cyberlaw expert who practices before India's Supreme Court. The project could be in violation of the country's Information Technology Act and rules which cover collection, handling and processing of sensitive personal data, he added.

Aadhaar, though said to be voluntary, could also be in violation of fundamental rights of the Indian constitution relating to right to life and privacy, as a perception is being created that the ID will be required for subsidies and benefits, Duggal added.

The government should have considered getting an enabling law passed by Parliament for the data collection as also a strong privacy law to prevent misuse of Aadhaar related data and collation of multiple databases using Aadhaar, because of the privacy issues involved and its implications on fundamental rights, said Pranesh Prakash, Policy Director at the Centre for Internet and Society in Bangalore.

The biometric project, which collects 10 fingerprints, iris scan and other information such as name, date of birth and address, has been criticized by a number of privacy groups who worry that the data could at some point be misused by the government. There is also a risk that such large databases could be hacked, putting at risk information of people. It is not clear what are the measures taken by UIDAI to protect the authenticity and correctness of the biometric information, and prevent access by foreign powers, Duggal said.

The Aadhaar number now allows different agencies including private organizations to collect and exchange data between them, which may be useful to marketers, for example, Prakash said. Previously, it wasn't practical as the agencies would have difficulty ensuring that the information was about the same person, he added.

The Supreme Court has also ruled that illegal immigrants should not be enrolled under the Aadhaar program, which is meant to facilitate subsidized services to Indian citizens. The Aadhaar, which does not collect citizenship information, is likely to be misused by illegal migrants, activists have said.

One of the many challenges facing the Aadhaar program is that village-level politicians and influence peddlers cook up data to enroll under subsidy schemes people who are not eligible for benefits, or people who are nonexistent. The traditional paper ration card scheme and voter rolls are usually stuffed with nonexistent people or people who do not typically qualify for benefits.

Aadhaar was expected to remove these discrepancies by more accurate collection of data on people who enrolled under the scheme. But a number of users have complained that the Aadhaar cards they have received have errors in their names, addresses and other details. One newspaper reported that an Aadhaar applicant received a card that had the face of a dog in place of his photograph.

UIDAI aims to provide 600 million Aadhaar numbers to residents by 2014.

For more details visit https://cis-india.org/news/computerworld-september-25-2013-john-ribeiro-indian-biometric-id-plan-faces-court-hurdle

Youths brainstorm at social summit

praskrishna — 2013-09-25T11:08:03Z

This group of youngsters is in the process of developing a smartphone app that will help traffic police and civic agencies strengthen emergency services like ambulances and fire engines.

The event was hosted in CIS on September 21. The Times of India covered this and published the story on September 22, 2013.

"Digital signboards and phone alerts can sensitize road users and traffic cops about emergency vehicles ," says the team, which is working on creating prototypes to build emergency response systems for citizens in case of road accidents.

Trupti Chengalath, head of communications for Mahiti.org, Dipankar Nayak, a young architect and Gauri Prasad, a Class 12 student of Canadian International School are part of the team which came together at the Bangalore Social Good Jam on Saturday.

The event, organized at the Centre for Internet and Society, Domlur, saw the participation of schoolchildren, college goers, young professionals and social entrepreneurs , who focused on devising technological solutions to some of the most pressing problems faced by Indian cities . Members of Ashoka India , a global association of leading social entrepreneurs , IDEX, a six-month fellowship programme on social enterprise, and the Green Lungi Movement, were part of the session.

Meera Vijayan, consultant , Framework Change, Ashoka, told STOI, "NGOs run by fellows of Ashoka and IDEX will implement these tech-based solutions in different cities and will involve government stakeholders too. These summits have become a global conversation on how to leverage technology for social change. Bangalore was chosen for the first-of-its-kind event in India because IT runs in the blood of the city."

For more details visit https://cis-india.org/news/the-times-of-india-september-22-2013-youths-brainstorm-at-social-summit

The National Cyber Security Policy: Not a Real Policy

bhairav — 2013-09-25T09:49:11Z

Cyber security in India is still a nascent field without an organised law and policy framework. Several actors participate in and are affected by India's still inchoate cyber security regime. The National Cyber Security Policy (NCSP) presented the government and other stakeholders with an opportune moment to understand existing legal limitations before devising a future framework. Unfortunately, the NCSP's poor drafting and meaningless provisions do not advance the field.

This article was published in the Observer Research Foundation's Cyber Security Monitor Vol. I, Issue.1, August 2013.

For some time now, law and policy observers in India have been noticing a definite decline in the quality of national policies emanating from the Central Government. Unlike legislation, which is notionally subject to debate in the Parliament of India, policies face no public evaluation before they are brought in to force. Since, unlike legislation, policies are neither binding nor enforceable, there has been no principled ground for demanding public deliberation of significant national policies. While Parliament’s falling standard of competence has been almost unanimously condemned, there has been nearly no criticism of the corresponding failure of the Centre to invigilate the quality of the official policies of its ministries. Luckily for the drafters of the National Cyber Security Policy (NCSP), the rest of the country has also mostly failed to notice its poor content.

The NCSP was notified into effect on 2 July 2013 by the Department of Electronics and Information Technology – which calls itself DeitY – of the Ministry of Communications and Information Technology. As far as legislation and legal drafting go, DeitY has a dubious record. In March 2013, in a parliamentary appraisal of subordinate law framed by DeitY, a Lok Sabha committee found ambiguity, invasions of privacy and potentially illegal clauses. Apprehensions about statutory law administered by DeitY have also found their way to the Supreme Court of India, where a constitutional challenge to certain provisions of the Information Technology Act, 2000 (IT Act) continues. On more than one occasion, owing to poor drafting, DeitY has been forced to issue advisories and press releases to clarify the meaning of its laws. Ironically, the legal validity of these clarifications is also questionable.

A national policy must set out, in real and quantifiable terms, the objectives of the government in a particular field within a specified time frame. To do that, the policy must provide the social, economic, political and legal context prevalent at the time of its issue as well as a normative statement of factual conditions it seeks to achieve at the time of its expiry. Between these two points in time, the policy must identify and explain all the particular social, economic, political and legal measures it intends to implement to secure its success. Albeit concerned solely with economic growth, the Five-Year Plans – the Second and Tenth Plans in particular, without prejudice to their success or failure, are samples of policies that are well-drafted. In this background, the NCSP should be judged on the basis of how it addresses, in no particular order, national security, democratic freedoms, economic growth and knowledge development. Let us restrict ourselves to the first two issues.

There are broadly two intersections between national security and information technology; these are: (i) the security of networked communications used by the armed forces and intelligence services, and (ii) the storage of civil information of national importance. While the NCSP makes no mention of it, the adoption of the doctrine of network-centric warfare by the three armed forces is underway. Understanding the doctrine is simple – an intensive use of information technology to create networks of information aids situational awareness and enables collaboration to bestow an advantage in combat. However, the doctrine is vulnerable to asymmetric attack using both primitive and highly sophisticated means. Pre-empting such attacks should be a primary policy concern; not so, apparently, for the NCSP which is completely silent on this issue. The NCSP is slightly more forthcoming on the protection of critical information infrastructure of a civil nature. Critical information infrastructure, such as the national power grid or the Aadhar database, is narrowly defined in section 70 of the IT Act where it used to describe a protected system. Other provisions of the IT Act also deal with the protection of critical information infrastructure. The NCSP does not explain how these statutory provisions have worked or failed, as the case may be, to necessitate further mention in a policy document. For instance, section 70A of the IT Act, inserted in 2008, enables the creation of a national nodal agency to undertake research and development and other activities in respect of critical information infrastructure. Despite this, five years later, the NCSP makes a similar recommendation to operate a National Critical Information Infrastructure Protection Centre to undertake the same activities. In the absence of any meaningful explanation of intended policy measures, there is no reason to expect that the NCSP will succeed where an Act of Parliament has failed.

But, putting aside the shortcomings of its piece-meal provisions, the NCSP also fails to address high-level conceptual policy concerns. As information repositories and governance services through information technology become increasingly integrated and centralised, the security of the information that is stored or distributed decreases. Whether by intent or error, if these consolidated repositories of information are compromised, the quantity of information susceptible to damage is greater leading to higher insecurity. Simply put, if power transmission is centrally controlled instead of zonally, a single attack could black out the entire country instead of only a part of it. Or if personal data of citizens is centrally stored, a single leak could compromise the privacy of millions of people instead of only hundreds. Therefore, a credible policy must, before it advocates greater centralisation of information, examine the merits of diffused information storage to protect national security. The NCSP utterly fails in this regard.

Concerns short of national security, such as the maintenance of law and order, are also in issue because crime is often planned and perpetrated using information technology. The prevention of crime before it is committed and its prosecution afterwards is a key policy concern. While the specific context may vary depending on the nature of the crime – the facts of terrorism are different from those of insurance fraud – the principles of constitutional and criminal law continue to apply. However, the NCSP neither examines the present framework of cybersecurity-related offences nor suggests any changes in existing law. It merely calls for a “dynamic legal framework and its periodic review to address the cyber security challenges” (sic). This is self-evident, there was no need for a new national policy to make this discovery; and, ironically, it fails to conduct the very periodic review that it envisages. This is worrying because the NCSP presented DeitY with an opportunity to review existing laws and learn from past mistakes. There are concerns that cybersecurity laws, especially relevant provisions of the IT Act and its rules, betray a lack of understanding of India’s constitutional scheme. This is exemplified by the insertion, in 2008, of section 66A into the IT Act that criminalises the sending of annoying, offensive and inconvenient electronic messages without regard for the fact that free speech that is annoying is constitutionally protected.

In India, cybersecurity law and policy attempts to compensate for the state’s inability to regulate the internet by overreaching into and encroaching upon democratic freedoms. The Central Monitoring System (CMS) that is being assembled by the Centre is a case in point. Alarmed at its inability to be privy to private communications, the Centre proposes to build systems to intercept, in real time, all voice and data traffic in India. Whereas liberal democracies around the world require such interceptions to be judicially sanctioned, warranted and supported by probable cause, India does not even have statutory law to regulate such an enterprise. Given that, once completed, the CMS will represent the largest domestic interception effort in the world, the failure of the NCSP to examine the effect of such an exercise on daily cybersecurity is bewildering. This is made worse by the fact that the state does not possess the technological competence to build such a system by itself and is currently tendering private companies for equipment. The state’s incompetence is best portrayed by the activities of the Indian Computer Emergency Response Team (CERT-In) that was constituted under section 70B of the IT Act to respond to “cyber incidents”. CERT-In has repeatedly engaged in extra-judicial censorship and has ham-handedly responded to allegedly objectionable blogs or websites by blocking access to entire domains. Unfortunately, the NCSP, while reiterating the operations of CERT-In, attempts no evaluation of its activities precluding the scope for any meaningful policy measures.

The NCSP’s poor drafting, meaningless provisions, deficiency of analysis and lack of stated measures renders it hollow. Its notification into force adds little to the public or intellectual debate about cybersecurity and does nothing to further the trajectory of either national security or democratic freedoms in India. In fairness, this problem afflicts many other national policies. There is a need to revisit the high intellectual and practical standards set by most national policies that were issued in the years following Independence.

For more details visit https://cis-india.org/internet-governance/blog/orfonline-bhairav-acharya-observer-research-foundation-cyber-security-monitor-august-2013-nsp-not-a-real-policy

CIS and International Coalition Calls upon Governments to Protect Privacy

elonnai — 2013-09-25T07:21:09Z

The Centre for Internet and Society (CIS) along with the International Coalition has called upon governments across the globe to protect privacy.

On September 20 in Geneva, CIS joined a huge international coalition in calling upon countries across the globe, including India to assess whether national surveillance laws and activities are in line with their international human rights obligations.

The Centre for Internet and Society has endorsed a set of international principles against unchecked surveillance. The 13 Principles set out for the first time an evaluative framework for assessing surveillance practices in the context of international human rights obligations.

A group of civil society organizations officially presented the 13 Principles this past Friday in Geneva at a side event attended by Navi Pillay, the United Nations High Commissioner for Human Rights and the United Nations Special Rapporteur on Freedom of Expression and Opinion, Frank LaRue, during the 24th session of the Human Rights Council. The side event was hosted by the Permanent Missions of Austria, Germany, Liechtenstein, Norway, Switzerland and Hungary.

Elonnai Hickok, Programme Manager at the Centre for Internet and Society has noted that "the 13 Principles are an important first step towards informing governments, corporates, and individuals across jurisdictions, including India, about needed safeguards for surveillance practices and related policies to ensure that they are necessary and proportionate."

Navi Pillay, the United Nations High Commissioner for Human Rights, speaking at the Human Rights Council stated in her opening statement on September 9:

"Laws and policies must be adopted to address the potential for dramatic intrusion on individuals’ privacy which have been made possible by modern communications technology."

Navi Pillay, the United Nations High Commissioner for Human Rights, speaking at the event, said that:

"technological advancements have been powerful tools for democracy by giving access to all to participate in society, but increasing use of data mining by intelligence agencies blurs lines between legitimate surveillance and arbitrary mass surveillance."

Frank La Rue, the United Nations Special Rapporteur on Freedom of Expression and Opinion made clear the case for a direct relationship between state surveillance, privacy and freedom of expression in this latest report to the Human Rights Council:

"The right to privacy is often understood as an essential requirement for the realization of the right to freedom of expression. Undue interference with individuals’ privacy can both directly and indirectly limit the free development and exchange of ideas. … An infringement upon one right can be both the cause and consequence of an infringement upon the other."

Speaking at the event, the UN Special Rapporteur remarked that:

"previously surveillance was carried out on targeted basis but the Internet has changed the context by providing the possibility for carrying out mass surveillance. This is the danger."

Representatives of the Centre for Internet and Society, Privacy International, the Electronic Frontier Foundation,Access,Human Rights Watch,Reporters Without Borders, Association for Progressive Communications, and theCenter for Democracy and Technology all are taking part in the event.

Find out more about the Principles at https://NecessaryandProportionate.org

Contacts

NGOs currently in Geneva for the 24^th Human Rights Council:

Access
Fabiola Carrion: fabiola@accessnow.org

Association for Progressive Communication
Shawna Finnegan: shawna@apc.org

Center for Democracy and Technology
Matthew Shears: mshears@cdt.org

Electronic Frontier Foundation
Katitza Rodriguez: katitza@eff.org - @txitua

Human Rights Watch
Cynthia Wong: wongc@hrw.org

Privacy International
Carly Nyst: carly@privacy.org

Reporters Without Borders
Lucie Morillon: lucie.morillon@rsf.org
Hélène Sackstein: helsack@gmail.com

Signatories

Argentina
Ramiro Alvarez: rugarte@adc.org.ar
Asociación por los Derechos Civiles

Argentina
Beatriz Busaniche: bea@vialibre.org.ar
Fundación Via Libre

Colombia
Carolina Botero: carobotero@gmail.com
Fundación Karisma

Egypt
Ahmed Ezzat: ahmed.ezzat@afteegypt.org
Afteegypt

Honduras
Hedme Sierra-Castro: hedme.sc@gmail.com
ACI-Participa

India
Elonnai Hickok: elonnai@cis-india.org
Center for Internet and Society

Korea
Prof. Park: kyungsinpark@korea.ac.kr
Open Net Korea

Macedonia
Bardhyl Jashari: info@metamorphosis.org.mk
Metamorphosis Foundation for Internet and Society

Mauritania, Senegal, Tanzania
Abadacar Diop: jonction_jonction@yahoo.fr
Jonction

Portugal
Andreia Martins: andreia@coolpolitics.pt
ASSOCIAÇÃO COOLPOLITICS

Peru
Miguel Morachimo: morachimo@gmail.com
Hiperderecho

Russia
Andrei Soldatov: soldatov@agentura.ru
Agentura.ru

Serbia
Djordje Krivokapic: krivokapic@gmail.com
SHARE Foundation

Western Balkans
Valentina Pellizer: valentina.pellizzer@oneworldsee.org
Oneworldsee

Brasil
Marcelo Saldanha: instituto@bemestarbrasil.org.br
IBEBrasil

For more details visit https://cis-india.org/internet-governance/blog/cis-and-international-coalition-calls-upon-governments-to-protect-privacy

Three Years Later, IPaidABribe.com Pays Off

praskrishna — 2013-09-25T06:05:05Z

After reporting a bribe on IPaidABribe.com, one Bangalore student has had the satisfaction of seeing action taken against a corrupt public official.

This article by Jessica McKenzie was published in TechPresident on September 23, 2013. Sunil Abraham is quoted.

The student, Shubham Kahndelwal, was asked to give a bribe before getting a receipt for registering for an identity card called the AADHAAR card. He at first refused, but then gave in. In response, the official gave him a receipt for his father's registration (which he had submitted along with his own) but not his. He told I Paid A Bribe that he “never knew a simple complaint could make such a difference.”

Kahndelwal elaborated:

I was in Chennai when the incident happened and after that I was furious and was searching all over to look for a complaint mechanism, when I stumbled upon IPaidaBribe.com. It is a great day and event for me and for me to share with my friends.

IPaidABribe.com was launched in August 2010 by the Bangalore-based nonprofit Janaagraha, which focuses on civic engagement and improving governance.

When first launched, there were concerns over privacy issues and protecting the users who submit complaints. On the other hand, in an interview this May with techPresident's David Eaves, Sunil Abraham, the founder of the Center for Internet & Society, pointed out that in order to make a difference, I Paid A Bribe would somehow have to close the loop.

Abraham went on:

some of the things that go on with anonymous reporting cannot happen, and to close the loop it almost needs to become a paralegal infrastructure. It has to talk to law enforcement and people have to be arrested, prosecuted and put away.

That is apparently what happened in this case. The official in question has been blacklisted and had disciplinary action taken against him.

To put the success in perspective, however, the bribe requested was Rs 2000 (US$31.95) and the bribe ultimately given was only Rs 350 (US$5.59).

Abraham also pointed out to Eaves that the real problem in India is “high ticket bribes...at the top of the pyramid.”

So while complaints from people like Kahndelwal are what keep the feeds at IPaidABribe.com constantly refreshing, they're mere drops in the bucket when compared to the millions of dollars moving in scandals like the 2G spectrum scam.

Personal Democracy Media is grateful to the Omidyar Network and the UN Foundation for their generous support of techPresident's WeGov section.

For more details visit https://cis-india.org/news/tech-president-september-23-2013-jessica-mckenzie

Public Law and Jurisprudential Issues of Privacy: A Talk at CIS

praskrishna — 2013-12-30T12:39:23Z

On Friday, September 27, 2013, Abhayraj Naik will give a talk on public law and jurisprudential issues related to privacy. CIS will host the talk at its office in Bangalore from 4.30 p.m. to 6.00 p.m.

Abhayraj Naik

Abhayraj Naik is a graduate of the National Law School of India University, Bangalore, and the Yale Law School. He previously taught public law at the Jindal Global Law School of the OP Jindal Global University where he also co-directed the Centre for Public Law & Jurisprudence from September 2009 to July 2012.

Abhay is actively associated with the Environment Support Group, Bangalore (http://www.esgindia.org), and has also been associated with the Meiklejohn Civil Liberties Institute, Berkeley, USA; Universities Allied for Essential Medicines, USA; Culture Move, Bangalore and other national and international advocacy, activism and research groups for several years now.

Abhay's research interests include legal theory, philosophy, criminal justice reform, urban governance, ecology, and technology policy. His current research projects include interdisciplinary studies of urban street vending, information privacy, fiduciary duties, forgiveness, biopiracy, and criminal justice reform.

He enjoys cycling, travel, poetry, music, and radical educational and ecological activism.

Abhay currently teaches at the Azim Premji University in Bangalore.

VIDEO

For more details visit https://cis-india.org/internet-governance/events/public-law-and-jurisprudential-issues-of-privacy-talk-at-cis

Bangalore + Social Good

praskrishna — 2013-09-25T07:43:58Z

In conjunction with The Social Good Summit held in New York City on September 22 - 24, Ashoka India, IDEX + Green Lungi are partnering to host the Bangalore + Sustainability event! The Social Good Summit aims to explore creative ways that technology can be leveraged for positive social change. Green Lungi in collaboration with IDEX and Ashoka is holding the event at CIS, Bangalore on September 21.

Sharath Chandra Ram, a researcher at CIS is one of the panelists. A brief abstract of his talk is given below:

"Are digital networked technologies adopted or used in the same way globally across all communities? Were social networks and apps across Twitter or Facebook really that pivotal in the mass citizen uprisings of the recent past? In this session, we shall see how it is essential to consider cultural specificities while designing technological interventions. Furthermore, I shall discuss how an effective strategy for citizen activism is not that which relies solely on virtual networks, but one that bridges networks, across different mediums, to engage offline citizens as much as the online. There will be a few live demonstrations of solutions we developed at the Centre for Internet and Society which embrace openness in pervasive technologies that enable us to bridge this crucial trans-medial interface."

The Bangalore + Sustainability event will focus on devising creative applications of technologies to confront sustainability challenges. We believe that young people have the power to affect change, and its time that we provide them with more opportunities to solve the challenges they see around them. This event is a first step in the direction of developing these problem-solving skills in our young people. Through an innovative Make-a-thon format, participants will engage in developing creative tech-based solutions to everyday challenges like road safety, waste management, water management, improving green cover and safer spaces for women.

Event Format and Details

1:45 - 2:00 -- Registration + Welcome

2:00 - 2:45 -- Panel Discussion + Q&A

Panelists will give a brief talk (5 - 7 minutes), posing questions for participants to consider around the intersection of technology + behavioral change + sustainability + youth engagement. A panelist from each of these sectors will set the context for the Jam to follow:

Sustainability
Communications/Design
Technology
Young Changemakers

Click to download the event brochure for details on the panelists/speakers

For more details visit https://cis-india.org/internet-governance/events/bangalore-social-good

The Central Monitoring System: Some Questions to be Raised in Parliament

bhairav — 2013-09-25T10:30:10Z

The following are some model questions to be raised in the Parliament regarding the lack of transparency in the central monitoring system.

Preliminary

The Central Monitoring System (CMS) is a Central Government project to intercept communications, both voice and data, that is transmitted via telephones and the internet to, from and within India. Owing to the vast nature of this enterprise, the CMS cannot be succinctly described and the many issues surrounding this project are diverse. This Issue Brief will outline preliminary constitutional, legal and technical concerns that are presented by the CMS.
At the outset, it must be clearly understood that no public documentation exists to explain the scope, functions and technical architecture of the CMS. This lack of transparency is the single-largest obstacle to understanding the Central Government’s motives in conceptualising and operationalizing the CMS. This lack of public documentation is also the chief reason for the brevity of this Issue Note. Without making public the policy, law and technical abilities of the CMS, there cannot be an informed national debate on the primary concerns posed by the CMS, i.e the extent of envisaged state surveillance upon Indian citizens and the safeguards, if any, to protect the individual right to privacy.

Surveillance and Privacy

Surveillance is necessary to secure political organisation. Modern nation-states, which are theoretically organised on the basis of shared national and societal characteristics, require surveillance to detect threats to these characteristics. In democratic societies, beyond the immediate requirements of national integrity and security, surveillance must be targeted at securing the safety and rights of individual citizens. This Issue Brief does not dispute the fact that democratic countries, such as India, should conduct surveillance to secure legitimate ends. Concerns, however, arise when surveillance is conducted in a manner unrestricted and unregulated by law; these concerns are compounded when a lack of law is accompanied by a lack of transparency.
Technological advancement leads to more intrusive surveillance. The evolution of surveillance in the United States resulted, in 1967, in the first judicial recognition of the right to privacy. In Katz v. United States the US Supreme Court ruled that the privacy of communications had to be balanced with the need to conduct surveillance; and, therefore, wiretaps had to be warranted, judicially sanctioned and supported by probable cause. Katz expanded the scope of the Fourth Amendment of the US Constitution, which protected against unreasonable searches and seizures. Most subsequent US legal developments relating to the privacy of communications from surveillance originate in the Katz judgement. Other common law countries, such as the United Kingdom and Canada, have experienced similar judicial evolution to recognise that the right to privacy must be balanced with governance.

Right to Privacy in India

Unfortunately, India does not have a persuasive jurisprudence of privacy protection. In the Kharak Singh (1964) and Gobind (1975) cases, the Supreme Court of India considered the question of privacy from physical surveillance by the police in and around the homes of suspects. In the latter case, the Supreme Court found that some of the Fundamental Rights “could be described as contributing to the right to privacy” which was nevertheless subject to a compelling public interest. This insipid inference held the field until 1994 when, in the Rajagopal (“Auto Shankar”, 1994) case, the Supreme Court, for the first time, directly located privacy within the ambit of the right to personal liberty recognised by Article 21 of the Constitution. However, Rajagopal dealt specifically with the publication of an autobiography, it did not consider the privacy of communications. In 1997, the Supreme Court considered the question of wiretaps in the PUCL case. While finding that wiretaps invaded the privacy of communications, it continued to permit them subject to some procedural safeguards which continue to be routinely ignored. A more robust statement of the right to privacy was made recently by the Delhi High Court in the Naz Foundation case (2011) that de-criminalised consensual homosexual acts; however, this judgment has been appealed to the Supreme Court.

Issues Pertaining to the CMS

While judicial protection from physical surveillance was cursorily dealt with in the Kharak Singh and Gobind cases, the Supreme Court of India directly considered the issue of wiretaps in the PUCL case. Wiretaps in India primarily occur on the strength of powers granted to certain authorities under section 5(2) of the Indian Telegraph Act, 1885. The Court found that the Telegraph Act, and Rules made thereunder, did not prescribe adequate procedural safeguards to create a “just and fair” mechanism to conduct wiretaps. Therefore, it laid down the following procedure to conduct wiretaps:

(a) the order should be issued by the relevant Home Secretary (this power is delegable to a Joint Secretary),
(b) the interception must be carried out exactly in terms of the order and not in excess of it,
(c) a determination of whether the information could be reasonably secured by other means,
(d) the interception shall cease after sixty (60) days.

Therefore, prima facie, any voice interception conducted through the CMS will be in violation of this Supreme Court judgement. The CMS will enforce blanket surveillance upon the entire country without regard for reasonable cause or necessity. This movement away from targeted surveillance to blanket surveillance without cause, conducted without statutory sanction and without transparency, is worrying.
Accordingly, the following questions may be raised, in Parliament, to learn more about the CMS project:

Which statutes, Government Orders, notifications etc deal with the establishment and maintenance of the CMS?
Which is the nodal agency in charge of implementing the CMS?
What are the powers and functions of the nodal agency?
What guarantees exist to protect ordinary Indian citizens from intrusive surveillance without cause?
What are the technical parameters of the CMS?
What are the consequences for misuse or abuse of powers by any person working in the CMS project?
What recourse is available to Indian citizens against whom there is unnecessary surveillance or against whom there has been a misuse or abuse of power?

For more details visit https://cis-india.org/internet-governance/blog/central-monitoring-system-questions-to-be-asked-in-parliament

The National Privacy Roundtable Meetings

bhairav — 2014-03-21T10:03:44Z

The Centre for Internet & Society ("CIS"), the Federation of Indian Chambers of Commerce and Industry ("FICCI"), the Data Security Council of India ("DSCI") and Privacy International are, in partnership, conducting a series of national privacy roundtable meetings across India from April to October 2013. The roundtable meetings are designed to discuss possible frameworks to privacy in India.

This research was undertaken as part of the 'SAFEGUARDS' project that CIS is undertaking with Privacy International and IDRC.

Background: The Roundtable Meetings and Organisers

CIS is a Bangalore-based non-profit think-tank and research organisation with interests in, amongst other fields, the law, policy and practice of free speech and privacy in India. FICCI is a non-governmental, non-profit association of approximately 250,000 Indian bodies corporate. It is the oldest and largest organisation of businesses in India and represents a national corporate consensus on policy issues. DSCI is an initiative of the National Association of Software and Service Companies, a non-profit trade association of Indian information technology ("IT") and business process outsourcing ("BPO") concerns, which promotes data protection in India. Privacy International is a London-based non-profit organisation that defends and promotes the right to privacy across the world.

Privacy in the Common Law and in India

Because privacy is a multi-faceted concept, it has rarely been singly regulated. A taxonomy of privacy yields many types of individual and social activity to be differently regulated based on the degree of harm that may be caused by intrusions into these activities.[1]

The nature of the activity is significant; activities that are implicated by the state are attended by public law concerns and those conducted by private persons inter se demand market-based regulation. Hence, because the principles underlying warranted police surveillance differ from those prompting consensual collections of personal data for commercial purposes, legal governance of these different fields must proceed differently. For this and other reasons, the legal conception of privacy — as opposed to its cultural construction – has historically been diverse and disparate.

Traditionally, specific legislations have dealt separately with individual aspects of privacy in tort law, constitutional law, criminal procedure and commercial data protection, amongst other fields. The common law does not admit an enforceable right to privacy.[2] In the absence of a specific tort of privacy, various equitable remedies, administrative laws and lesser torts have been relied upon to protect the privacy of claimants.[3]

The question of whether privacy is a constitutional right has been the subject of limited judicial debate in India. The early cases of Kharak Singh (1964)[4] and Gobind (1975)[5] considered privacy in terms of physical surveillance by the police in and around the homes of suspects and, in the latter case, the Supreme Court of India found that some of the Fundamental Rights “could be described as contributing to the right to privacy” which was nevertheless subject to a compelling public interest. This inference held the field until 1994 when, in the Rajagopal case (1994),[6] the Supreme Court, for the first time, directly located privacy within the ambit of the right to personal liberty guaranteed by Article 21 of the Constitution of India. However, Rajagopal dealt specifically with a book, it did not consider the privacy of communications. In 1997, the Supreme Court considered the question of wiretaps in the PUCL case (1996)[7] and, while finding that wiretaps invaded the privacy of communications, it continued to permit them subject to some procedural safeguards.[8] A more robust statement of the right to privacy was made recently by the Delhi High Court in the Naz Foundation case (2011)[9] that de-criminalised consensual homosexual acts; however, this judgment is now in appeal.

Attempts to Create a Statutory Regime

The silence of the common law leaves the field of privacy in India open to occupation by statute. With the recent and rapid growth of the Indian IT and BPO industry, concerns regarding the protection of personal data to secure privacy have arisen. In May 2010, the European Union ("EU") commissioned an assessment of the adequacy of Indian data protection laws to evaluate the continued flow of personal data of European data subjects into India for processing. That assessment made adverse findings on the adequacy and preparedness of Indian data protection laws to safeguard personal data.[10]

Conducted amidst negotiations for a free trade agreement between India and the EU, the failed assessment potentially impeded the growth of India’s outsourcing industry that is heavily reliant on European and North American business.

Consequently, the Department of Electronics and Information Technology of the Ministry of Communications and Information Technology, Government of India, issued subordinate legislation under the rule-making power of the Information Technology Act, 2000 ("IT Act"), to give effect to section 43A of that statute. These rules – the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 ("Personal Data Rules")[11] — were subsequently reviewed by the Committee on Subordinate Legislation of the 15^th Lok Sabha.[12] The Committee found that the Personal Data Rules contained clauses that were ambiguous, invasive of privacy and potentially illegal.[13]

In 2011, a draft privacy legislation called the ‘Right to Privacy Bill, 2011’, which was drafted within the Department of Personnel and Training ("DoPT") of the Ministry of Personnel, Public Grievances and Pensions, Government of India, was made available on the internet along with several file notings ("First DoPT Bill"). The First DoPT Bill contained provisions for the regulation of personal data, interception of communications, visual surveillance and direct marketing. The First DoPT Bill was referred to a Committee of Secretaries chaired by the Cabinet Secretary which, on 27 May 2011, recommended several changes including re-drafts of the chapters relating to interception of communications and surveillance.

Aware of the need for personal data protection laws to enable economic growth, the Planning Commission constituted a Group of Experts under the chairmanship of Justice Ajit P. Shah, a retired Chief Justice of the Delhi High Court who delivered the judgment in the Naz Foundation case, to study foreign privacy laws, analyse existing Indian legal provisions and make specific proposals for incorporation into future Indian law. The Justice Shah Group of Experts submitted its Report to the Planning Commission on 16 October 2012 wherein it proposed the adoption of nine National Privacy Principles.[14] These are the principles of notice, choice and consent, collection limitation, purpose limitation, disclosure of information, security, openness, and accountability. The Report recommended the application of these principles in laws relating to interception of communications, video and audio recordings, use of personal identifiers, bodily and genetic material, and personal data.

Criminal Procedure and Special Laws Relating to Privacy

While the Kharak Singh and Gobind cases first brought the questions of permissibility and limits of police surveillance to the Supreme Court, the power to collect information and personal data of a person is firmly embedded in Indian criminal law and procedure. Surveillance is an essential condition of the nation-state; the inherent logic of its foundation requires the nation-state to perpetuate itself by interdicting threats to its peaceful existence. Surveillance is a method by which the nation-state’s agencies interdict those threats. The challenge for democratic countries such as India is to find the optimal balance between police powers of surveillance and the essential freedoms of its citizens, including the right to privacy.

The regime governing the interception of communications is contained in section 5(2) of the Indian Telegraph Act, 1885 ("Telegraph Act") read with rule 419A of the Indian Telegraph Rules, 1951 ("Telegraph Rules"). The Telegraph Rules were amended in 2007[15] to give effect to, amongst other things, the procedural safeguards laid down by the Supreme Court in the PUCL case. However, India’s federal scheme permits States to also legislate in this regard. Hence, in addition to the general law on interceptions contained in the Telegraph Act and Telegraph Rules, some States have also empowered their police forces with interception functions in certain cases.[16] Ironically, even though some of these State laws invoke heightened public order concerns to justify their invasions of privacy, they establish procedural safeguards based on the principle of probable cause that surpasses the Telegraph Rules.

In addition, further subordinate legislation issued to fulfil the provisions of sections 69(2) and 69B(3) of the IT Act permit the interception and monitoring of electronic communications — including emails — to collect traffic data and to intercept, monitor, and decrypt electronic communications.[17]

The proposed Privacy (Protection) Bill, 2013 and Roundtable Meetings

In this background, the proposed Privacy (Protection) Bill, 2013 seeks to protect privacy by regulating (i) the manner in which personal data is collected, processed, stored, transferred and destroyed — both by private persons for commercial gain and by the state for the purpose of governance; (ii) the conditions upon which, and procedure for, interceptions of communications — both voice and data communications, including both data-in-motion and data-at-rest — may be conducted and the authorities permitted to exercise those powers; and, (iii) the manner in which forms of surveillance not amounting to interceptions of communications — including the collection of intelligence from humans, signals, geospatial sources, measurements and signatures, and financial sources — may be conducted.

Previous roundtable meetings to seek comments and opinion on the proposed Privacy (Protection) Bill, 2013 took place at:

New Delhi: April 13, 2013 (http://bit.ly/17REl0W) with 45 participants;
Bangalore: April 20, 2013 (http://bit.ly/162t8rU) with 45 participants;
Chennai: May 18, 2013 (http://bit.ly/12ICGYD) with 25 participants.
Mumbai, June 15, 2013 (http://bit.ly/12fJSvZ) with 20 participants;
Kolkata: July 13, 2013 (http://bit.ly/11dgINZ) with 25 participants; and
New Delhi: August 24, 2013 (http://bit.ly/195cWIf) with 40 participants.

The roundtable meetings were multi-stakeholder events with participation from industry representatives, lawyers, journalists, civil society organizations and Government representatives. On an average, 75 per cent of the participants represented industry concerns, 15 per cent represented civil society and 10 per cent represented regulatory authorities. The model followed at the roundtable meetings allowed for equal participation from all participants.

[1]. See generally, Dan Solove, “A Taxonomy of Privacy” University of Pennsylvania Law Review (Vol. 154, No. 3, January 2006).

[2]. Wainwright v. Home Office [2003] UKHL 53.

[3]. See A v. B plc [2003] QB 195; Wainwright v. Home Office [2001] EWCA Civ 2081; R (Ellis) v. Chief Constable of Essex Police [2003] EWHC 1321 (Admin).

[4]. Kharak Singh v. State of Uttar Pradesh AIR 1963 SC 1295.

[5]. Gobind v. State of Madhya Pradesh AIR 1975 SC 1378.

[6]. R. Rajagopal v. State of Tamil Nadu AIR 1995 SC 264.

[7]. People’s Union for Civil Liberties v. Union of India (1997) 1 SCC 30.

[8]. A Division Bench of the Supreme Court of India comprising Kuldip Singh and Saghir Ahmad, JJ, found that the procedure set out in section 5(2) of the Indian Telegraph Act, 1885 and rule 419 of the Indian Telegraph Rules, 1951 did not meet the “just, fair and reasonable” test laid down in Maneka Gandhi v. Union of India AIR 1978 SC 597 requisite for the deprivation of the right to personal liberty, from whence the Division Bench found a right to privacy emanated, guaranteed under Article 21 of the Constitution of India. Therefore, Kuldip Singh, J, imposed nine additional procedural safeguards that are listed in paragraph 35 of the judgment.

[9]. Naz Foundation v. Government of NCT Delhi (2009) 160 DLT 277.

[10]. The 2010 data adequacy assessment of Indian data protection laws was conducted by Professor Graham Greenleaf. His account of the process and his summary of Indian law can found at Graham Greenleaf, "Promises and Illusions of Data Protection in Indian Law" International Data Privacy Law (47-69, Vol. 1, No. 1, March 2011).

[11]. The Rules were brought into effect vide Notification GSR 313(E) on 11 April 2011. CIS submitted comments on the Rules that can be found here – http://cis-india.org/internet-governance/blog/comments-on-the-it-reasonable-security-practices-and-procedures-and-sensitive-personal-data-or-information-rules-2011.

[12]. The Committee on Subordinate Legislation, a parliamentary ‘watchdog’ committee, is mandated by rules 317-322 of the Rules of Procedure and Conduct of Business in the Lok Sabha (14^th edn., New Delhi: Lok Sabha Secretariat, 2010) to examine the validity of subordinate legislation.

[13]. See the 31^st Report of the Committee on Subordinate Legislation that was presented on 21 March 2013.

[14]. See paragraphs 7.14-7.17 on pages 69-72 of the Report of the Group of Experts on Privacy, 16 October 2012, Planning Commission, Government of India.

[15]. See, the Indian Telegraph (Amendment) Rules, 2007, which were brought into effect vide Notification GSR 193(E) of the Department of Telecommunications of the Ministry of Communications and Information Technology, Government of India, dated 1 March 2007.

[16]. See, inter alia, section 14 of the Maharashtra Control of Organised Crime Act, 1999; section 14 of the Andhra Pradesh Control of Organised Crime Act, 2001; and, section 14 of the Karnataka Control of Organised Crime Act, 2000.

[17]. See, the Information Technology (Procedure and Safeguards for Monitoring and Collecting Traffic Data and Information) Rules, 2009 vide GSR 782 (E) dated 27 October 2009; and, Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 vide GSR 780 (E) dated 27 October 2009.

For more details visit https://cis-india.org/internet-governance/blog/national-privacy-roundtable-meetings

We are anonymous, we are legion

September 2013 Bulletin

Accessibility

Access to Knowledge and Openness

Access to Knowledge (Copyright and Pervasive Technologies)

Internet Governance

Telecom

Digital Natives

Digital Humanities

A Privacy Meeting with the Federal Trade Commission in New Delhi

Privacy (Protection) Bill, 2013: Updated Third Draft

Privacy Round Table, New Delhi (October 2013)

Agenda

The Speakers

Jacob Kohnstamm

Chantal Bernier

Christopher Graham

Confirmations and RSVP

11th India Knowledge Summit 2013

CYFY 2013: India Conference on Cyber Security and Cyber Governance

List of Speakers

Indian biometric ID plan faces court hurdle

Youths brainstorm at social summit

The National Cyber Security Policy: Not a Real Policy

CIS and International Coalition Calls upon Governments to Protect Privacy

Contacts

Three Years Later, IPaidABribe.com Pays Off

Public Law and Jurisprudential Issues of Privacy: A Talk at CIS

Abhayraj Naik

Bangalore + Social Good

Event Format and Details

The Central Monitoring System: Some Questions to be Raised in Parliament

The National Privacy Roundtable Meetings

Background: The Roundtable Meetings and Organisers

Privacy in the Common Law and in India

Attempts to Create a Statutory Regime

Criminal Procedure and Special Laws Relating to Privacy

The proposed Privacy (Protection) Bill, 2013 and Roundtable Meetings