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Ethical Data Design Practices in the AI (Artificial Intelligence) Age

Admin — 2018-08-01T23:14:21Z

Shweta Mohandas was a panelist at discussion on Ethical Data Design Practices in the AI (Artificial Intelligence) Age, organised by Startup Grind, Bangalore on July 28, 2018 at NUMA Bangalore.

Agenda

Ethical Data Design Practices in the Age

The panel discussion is intended to explore the challenges we face when designing the user experiences of the complex behavioral agents that increasingly run our lives.

Discussion centred around how to:

Understand current thinking by the AI community on ethics and morality in computing and the challenges it presents.
Explore examples of the ethical choices that products make now and will make in the near future.
Learn how designers might approach designing experiences that face moral dilemmas.

For more details visit https://cis-india.org/internet-governance/news/ethical-data-design-practices-in-the-ai-artificial-intelligence-age

Firms find wealth in your data

Admin — 2018-07-25T16:06:30Z

Data collection and theft is quite prevalent and there is little an individual can do right now.

Data protection and privacy are the new buzzwords in the corridors of power in India. While a Ministry of Electronics and Technology committee led by retired Supreme Court Justice B N Srikrishna is working on a draft Data Protection Bill, the Telecom Regulatory Authority of India (TRAI) has come out with its own recommendations regarding privacy, security, and ownership of data in the telecom sector.

How is your data collected?

Every minute you spend online leads to your data being generated, collected and collated somewhere. “There is data that we volunteer. If I create an account for myself on any website I will provide my name, age, banking and so on,” says Amber Sinha, senior programme manager, Centre for Internet and Society.

“Then there is data which gets collected by telecom companies and companies which provide OTT (Over-The-Top) services, like Google Chrome. Much of this data is collected automatically — my browsing history, what links were open, what ads did I click on in Facebook etc. Most websites use trackers and cookies that continue working in the background. Even when you have closed the link and move on to another website, they still continue to collect data about you,” he adds.

What is the method behind this?

“In order to provide a service, there is some data that they need to collect. For example, a cab aggregator has to get my location in order to connect me to nearest cabs. Yet most companies collect data beyond what might be needed. Suppose you are availing an online service which involves a payment aspect. For authentication, an OTP is sent in the form of a text message. The online services will seek permission to read our messages so that they can automatically pull the OTP, saving us the trouble of having to key it in manually. But the system is designed in such a way that the permission they seek is for my entire message box,” explains Amber.

Read the complete article by Rajitha Menon in Deccan Herald published on July 20, 2018. Amber Sinha has been quoted.

For more details visit https://cis-india.org/internet-governance/news/deccan-herald-july-20-2018-rajitha-menon-firms-find-wealth-in-your-data

WhatsApp races against time to fix fake news mess ahead of 2019 general elections

Admin — 2018-07-25T15:27:20Z

On Friday, when WhatsApp announced that it would pilot a ‘five media-based forwards limit’ in India, the government came up with an unequivocal reminder.

The article by Venkat Ananth was published in Economic Times on July 24, 2018. Sunil Abraham was quoted.

“When rumours and fake news get propagated by mischief mongers, the medium used for such propagation cannot evade responsibility and accountability. If they remain mute spectators, they are liable to be treated as abettors and thereafter face consequent legal action,” noted a ministry of electronics and information technology (MeitY) statement.

The statement also said there was a need for bringing in traceability and accountability, “when a provocative/inflammatory message is detected and a request is made by law enforcement agencies.”

Significantly, MeitY took aim at WhatsApp’s core end-to-end encryptionbased product feature and its oft-quoted and reiterated commitment to privacy. It was specific, going beyond the usual “do more” requests.

The stand also poses an interesting dilemma for the messenger service. How can it act while protecting its privacy commitment?

“It is practical ly impossible for WhatsApp to regulate content in the peer-to-peer encrypted environment it is set up in,” says Rahul Matthan, partner, Trilegal. “An encrypted platform is what we want. The government is trying to maintain a strict and difficult balance. The government tends to err on the side of violating civil liberties over offering privacy to innocent users. The WhatsApp case is going in that direction.”

No Longer Low-Key

In India, its largest market, WhatsApp has benefitted from quietly operating in the shadows of its more popular parent, Facebook, growing to a currently active user base of 200 million.

However, in the last six months, while it continues to be perceived as an asset by politicos for outreach and propaganda, WhatsApp is now increasingly being tapped by the bad guys to disseminate deliberate misinformation, rumour mongering and fake news. And not the Donald Trump kind either.

It is leading to loss of lives on the ground, through lynchings, kidnappings and related crimes.

WhatsApp spokesperson Carl Woog says, “The recent acts of violence in India have been heartbreaking and reinforce the need for government, civil society and technology companies to work together to keep people safe.”

“By focusing on solutions to fake news inside our smartphones, we are ignoring a tougher problem that requires several complementary solutions,” says Apar Gupta, a Delhi-based lawyer and cofounder of the Internet Freedom Foundation.

“Let us not forget that a platform is not responsible for policing.”

But the general public and government perception — and, to some extent, concern — remains that WhatsApp has been slow to react to these situations.

To Police or Not to Police

Interestingly, the government and ruling party realise WhatsApp could be pivotal to their fortunes in the next electoral cycle — in the run-up to Elections
2019.

“The government is coming under increased pressure to act on these lynchings, which is why it is taking a shootthe-messenger kind of an approach,” says Matthan. “An unsophisticated government would have advocated a blanket ban on the source. But here, the government, it appears, wants to regulate tech by having access to your device, through an app, in the case of the (telecom regulator) Trai DND app to battle spam.”

This is also why WhatsApp has intensified its outreach efforts. Over the past 10 days, a team of its US and India-based executives have been meeting key stakeholders in Delhi and Mumbai, including the Election Commission, political parties, the Reserve Bank of India, banks and civil society, as ET reported last week.

The team includes public policy manager Ben Supple, senior director, customer operations, Komal Lahiri and WhatsApp India communication manager Pragya Misra Mehrishi. They are now expected to meet key government officials from MeitY from Monday, sources say.

“The intense outreach efforts is essentially linked to WhatsApp wanting to protect its payments play in India,” says a Delhi-based public policy professional, who did not want to be named as he is not authorised to speak to the media.

“It (WhatsApp) is really worried about Google’s efforts with Tez and the gap that will only widen if the government delays grant of permission.”

WhatsApp is stressing some key points while reinforcing the steps it is taking to counter challenges. One, the best practices of using the platform. Two, the need to work together to prevent abuse of WhatsApp, and three, most importantly, to educate people about the best ways of using the platform. WhatsApp was primarily designed for private, oneon-one messaging or group chats among acquaintances, not for mass broadcast, which parties resort to during elections.

WhatsApp says it is working on a warfooting to tackle the problems. It has introduced product changes to counter user behaviour. There’s more control, where a group ‘admin’ can restrict users who can send messages to the group, modify a group icon or edit description, a feature for which it has taken a leaf out of rival Telegram’s book. To counter fake news, it added a ‘forwarded’ label. And now, limited the forwarding to five in India, and 20 in the rest of the markets, a significant reduction from 250 prior to that.

While the impact of these product tweaks is yet to be seen at an individual user level, the larger concern for WhatsApp today is the potential misuse of its platform to manipulate elections, a very real possibility next year.

Tipping Point

The company’s noticeable change of tack comes after it noticed certain trends during the recent Karnataka elections, during which one of its executives spent a week in Bengaluru.

One of the political parties, which a person aware of the developments in WhatsApp declined to name, was using “dozens of accounts to create thousands of groups,” as part of its campaign.

The party, the source says, was adding random numbers (approximately 100) to the group during creation. By random numbers, he meant people who did not know each other, something WhatsApp can identify using the metadata it collects when a user gives it access to its phone book. WhatsApp deems this behaviour ‘organised spamming.’

“These were real people not necessarily known to each other,” says the person quoted above. “A specific account would be added to that group to be made the admin.”

Mostly, this admin was the number used to create these multiple groups or, in WhatsApp terms, the account that was not behaving the way private or group communication happens.

Also, the users would be a mix of fake accounts, which is a major red flag for WhatsApp. “The group starts with some bulk added users and then the real ones get bulk-added,” says the source. WhatsApp deems this practice a violation of its terms of service.

Company sources add that WhatsApp was able to detect these trends and proactively banned these users before they were able to add people. “In some cases, our systems didn’t catch this in time, but we were able to proactively prevent users from receiving such spam. That detection is now internalised and if someone tries to replicate that behaviour anywhere in the world, we will be able to detect them,” says another person familiar with developments at WhatsApp.

According to several media reports, the BJP and the Congress too created over 30,000 groups for campaigning and organising efforts. To counter organised political spamming, WhatsApp has now begun using machine learning tools. WhatsApp can trace the last few messages in a group and block it entirely from the platform. At the detection level, WhatsApp checks for familiarity. “Do the persons know each other, or have they interacted before?” through metadata it possesses through phone numbers.

The second person quoted in the story says the company now focuses its detection “upstream,” that is, catching the user at the registration stage. “When you register on WhatsApp and immediately create a group, questions asked are, ‘Does this behaviour look like what a regular user does? Or does it look like users who have misused it in the past?’” he says.

WhatsApp, sources tell ET, is also using machine learning to detect sequential numbers that could be used to create these groups. “If they go and buy a phone number, they go to one carrier and its mostly sequential. If we notice 100 numbers with the same prefix have signed up, nearly 80 get automatically banned. What we do is feed these sequences, permutations and combinations to detect good/bad users,” the person quoted above says. “It learns millions of these combination signals on behaviour and help us make a decision.”

Civil Society as a Key Layer

WhatsApp also sees an enabling role for civil society, especially for digital literacy. Its team has currently met seven non-governmental organisations, including digital literacy groups and others involved in the area of financial inclusion. This is part of its public policy efforts while also solidifying its payments play.

“The level of responsibility for a platform is to not consciously cause — and, in fact, to take active measures to prevent — social harm,” says Gupta of IFF. “It has to be done without injury to end-to-end encryption, which offers safety and privacy to users.

Many products and product strategies can be adopted — from increasing media diversity on the platform to promoting auditing features that rely on partnerships with fact-checking organisations. We must demand accountability but resist the rhetorical attraction of technophobia.”

As ET has reported, WhatsApp will adapt a fact-checking model, Verificado 2018, deployed during the recent Mexican presidential elections. Verificado proactively debunked fake news and misinformation on the platform. “The rumours were found to be very similar to India.

Verificado was specifically focused on misinformation from candidates,” says the first person quoted in the story. “Plus, it helped effectively tackle misinformation during an earthquake in Mexico.”

For WhatsApp, one of the key learnings from the Mexico elections was that it could look at the spam reports and categorise them as politics-related. The company, unsurprisingly, saw an increase in political spam in the buildup to election day.

“They realised Verificado assists users to get help within the app. But it also aids news organisations, political parties, the government and users,” adds the person. The company is undertaking a similar exercise in Brazil, where 24 media outlets have come together under the Comprova initiative to fact-check viral content and rumours on WhatsApp.

Sunil Abraham, executive director of the Bengaluru-based Centre for Internet and Society believes WhatsApp can further tweak its product to enable real-time checks. “They can enable a ‘fact check this’ button for users to upload content to a fact-checking database. If the content has already been fact-checked, the score can be displayed immediately. Alternatively, the fact-checking service can return the score at a later date,” he explains.

For more details visit https://cis-india.org/internet-governance/news/economic-times-venkat-ananth-july-24-2018-whatsapp-races-against-time-to-fix-fake-news-mess-ahead-of-2019-general-elections

Anti-trafficking Bill may lead to censorship

Swaraj Barooah and Gurshabad Grover — 2018-08-02T13:59:16Z

There are a few problematic provisions in the proposed legislation—it may severely impact freedom of expression.

The article was published in Livemint on July 24, 2018.

The legislative business of the monsoon session of Parliament kicked off on 18 July with the introduction of the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018, in the Lok Sabha. The intention of the Union government is to “make India a leader among South Asian countries to combat trafficking” through the passage of this Bill. Good intentions aside, there are a few problematic provisions in the proposed legislation, which may severely impact freedom of expression.

For instance, Section 36 of the Bill, which aims to prescribe punishment for the promotion or facilitation of trafficking, proposes a minimum three-year sentence for producing, publishing, broadcasting or distributing any type of material that promotes trafficking or exploitation. An attentive reading of the provision, however, reveals that it has been worded loosely enough to risk criminalizing many unrelated activities as well.

The phrase “any propaganda material that promotes trafficking of person or exploitation of a trafficked person in any manner” has wide amplitude, and many unconnected or even well-intentioned actions can be construed to come within its ambit as the Bill does not define what constitutes “promotion”. For example, in moralistic eyes, any sexual content online could be seen as promoting prurient interests, and thus also promoting trafficking.

Rather than imposing a rigorous standard of actual and direct nexus with the act of trafficking or exploitation, a vaguer standard which includes potentially unprovable causality, including by actors who may be completely unaware of such activity, is imposed. This opens the doors to using this provision for censorship and imposes a chilling effect on any literary or artistic work which may engage with sensitive topics, such as trafficking of women.

In the past, governments have been keen to restrict access to online escort services and pornography. In June 2016, the Union government banned 240 escort sites for obscenity even though it cannot do that under Section 69A or Section 79 of the Information Technology Act, or Section 8 of the Immoral Traffic (Prevention) Act. In July 2015, the government asked internet service providers (ISPs) to block 857 pornography websites sites on grounds of outraging “morality” and “decency”, but later rescinded the order after widespread criticism. If historical record is any indication, Section 36 in this present Bill will legitimize such acts of censorship.

Section 39 proposes an even weaker standard for criminal acts by proposing that any act of publishing or advertising “which may lead to the trafficking of a person shall be punished” (emphasis added) with imprisonment for 5-10 years. In effect, the provision mandates punishment for vaguely defined actions that may not actually be connected to the trafficking of a person at all. This is in stark contrast to most provisions in criminal law, which require mens rea (intention) along with actus reus (guilty act). The excessive scope of this provision is prone to severe abuse, since without any burden of showing a causal connect, it could be argued that anything “may lead” to the trafficking of a person.

Another by-product of passing the proposed legislation would be a dramatic shift in India’s landscape of intermediary liability laws, i.e., rules which determine the liability of platforms such as Facebook and Twitter, and messaging services like Whatsapp and Signal for hosting or distributing unlawful content.

Provisions in the Bill that criminalize the “publication” and “distribution” of content, ignore that unlike the physical world, modern electronic communication requires third-party intermediaries to store and distribute content. This wording can implicate neutral communication pipeways, such as ISPs, online platforms, mobile messengers, which currently cannot even know of the presence of such material unless they surveil all their users. Under the proposed legislation, the fact that human traffickers used Whatsapp to communicate about their activities could be used to hold the messaging service criminally liable.

By proposing such, the Bill is in direct conflict with the internationally recognized Manila Principles on Intermediary Liability, and in dissonance with existing principles of Indian law, flowing from the Information Technology Act, 2000, that identify online platforms as “safe harbours” as long as they act as mere conduits. From the perspective of intermediaries, monitoring content is unfeasible, and sometimes technologically impossible as in the case of Whatsapp, which facilitates end-to-end encrypted messaging. And as a 2011 study by the Centre for Internet & Society showed, platforms are happy to over-comply in favour of censorship to escape liability rather than verify actual violations. The proposed changes will invariably lead to a chilling effect on speech on online platforms.

Considering these problematic provisions, it will be a wise move to send the Bill to a select committee in Parliament wherein the relevant stakeholders can engage with the lawmakers to arrive at a revised Bill, hopefully one which prevents human trafficking without threatening the Constitutional right of free speech.

For more details visit https://cis-india.org/internet-governance/blog/livemint-july-24-2018-swaraj-barooah-and-gurshabad-grover-anti-trafficking-bill-may-lead-to-censorship

The Centre for Internet and Society’s Comments and Recommendations to the: Indian Privacy Code, 2018

Shweta Mohandas, Elonnai Hickok, Amber Sinha and Shruti Trikanand — 2018-07-20T13:55:46Z

The debate surrounding privacy has in recent times gained momentum due to the Aadhaar judgement and the growing concerns around the use of personal data by corporations and governments.

Click to download the file here

As India moves towards greater digitization, and technology becomes even more pervasive, there is a need to ensure the privacy of the individual as well as hold the private and public sector accountable for the use of personal data. Towards enabling public discourse and furthering the development a privacy framework for India, a group of lawyers and policy analysts backed by the Internet Freedom Foundation (IFF) have put together a draft a citizen's bill encompassing a citizen centric privacy code that is based on seven guiding principles.^{^[1]} This draft builds on the Citizens Privacy Bill, 2013 that had been drafted by CIS on the basis of a series of roundtables conducted in India.^{^[2]} Privacy is one of the key areas of research at CIS and we welcome this initiative and hope that our comments make the Act a stronger embodiment of the right to privacy.

Section by Section Recommendations

Preamble

Comment: The Preamble specifies that the need for privacy has increased in the digital age, with the emergence of big data analytics.

Recommendation: It could instead be worded as ‘with the emergence of technologies such as big data analytics’, so as to recognize the impact of multiple technologies and processes including big data analytics.

Comment: The Preamble states that it is necessary for good governance that all interceptions of communication and surveillance be conducted in a systematic and transparent manner subservient to the rule of law.

Recommendation: The word ‘systematic’ is out of place, and can be interpreted incorrectly. It could instead be replaced with words such as ‘necessary’, ‘proportionate’, ‘specific’, and ‘narrow’, which would be more appropriate in this context.

Chapter 1 Preliminary

Section 2: This Section defines the terms used in the Act.

Comment: Some of the terms are incomplete and a few of the terms used in the Act have not been included in the list of definitions.

Recommendations:

The term “effective consent” needs to be defined. The term is first used in the Proviso to Section 7(2), which states “Provided that effective consent can only be said to have been obtained where...:”It is crucial that the Act defines effective consent especially when it is with respect to sensitive data.
The term “open data” needs to be defined. The term is first used in Section 5 that states the exemptions to the right to privacy. Subsection 1 clause ii states as follows “the collection, storage, processing or dissemination by a natural person of personal data for a strictly non-commercial purposes which may be classified as open data by the Privacy Commission”. Hence the term open data needs to be defined in order to ensure that there is no ambiguity in terms of what open data means.
The Act does not define “erasure”, although the term erasure does come under the definition of destroy (Section 2(1)(p)). There are some provisions that use the word erasure , hence if erasure and destruction mean different acts then the term erasure needs to be defined, otherwise in order to maintain uniformity the sections where erasure is used could be substituted with the term “destroy” as defined under this Act.
The definition of “sensitive personal data” does not include location data and identification numbers. The definition of sensitive data must include location data as the Act also deals in depth with surveillance. With respect to identification numbers, the Act needs to consider identification numbers (eg. the Aadhaar number, PAN number etc.) as sensitive information as this number is linked to a person's identity and can reveal sensitive personal data such as name, age, location, biometrics etc. Example can be taken from Section 4(1) of the GDPR^{^[3]} which identifies location data as well as identification numbers as sensitive personal data along with other identifies such as biometric data, gender race etc.
The Act defines consent as the “unambiguous indication of a data subject’s agreement” however, the definition does not indicate that there needs to be an informed consent. Hence the revised definition could read as follows “the informed and unambiguous indication of a data subject’s agreement”. It is also unclear how this definition of consent relates to ‘effective consent’. This relationship needs to be clarified.
The Act defines ‘data controller’ in Section 2(1)(l) as “ any person including appropriate government..”. In order to remove any ambiguity over the definition of the term person, the definition could specify that the term person means any natural or legal person.
The Act defines ‘data processor’ in Section (2(1)(m) as “means any person including appropriate government”. In order to remove any ambiguity over the definition of the term ‘any person’, the definition could specify that the term person means any natural or legal person.

CHAPTER II

Right to Privacy

Section 5: This section provides exemption to the rights to privacy.

Comment: Section 5(1)(ii) states that the collection, storage, processing or dissemination by a natural person of personal data for a strictly non-commercial purposes are exempted from the provisions of the right to privacy. This clause also states that this data may be classified as open data by the Privacy Commission. This section hence provides individuals the immunity from collection, storage, processing and dissemination of data of another person. However this provision fails to state what specific activities qualify as non commercial use.

Recommendation: This provision could potentially be strengthened by specifying that the use must be in the public interest. The other issue with this subsection is that it fails to define open data. If open data was to be examined using its common definition i.e “data that can be freely used, modified, and shared by anyone for any purpose”^{^[4]} then this section becomes highly problematic. As a simple interpretation would mean that any personal data that is collected, stored, processed or disseminated by a natural person can possibly become available to anyone. Beyond this, India has an existing framework governing open data. Ideally the privacy commissioner could work closely with government departments to ensure that open data practices in India are in compliance with the privacy law.

CHAPTER III

Protection of Personal Data

PART A

Notice by data controller

Section 6: This section specifies the obligations to be followed by data controllers in their communication, to maintain transparency and lays down provisions that all communications by Data Controllers need to be complied with.

Comment: There seems to be a error in the Proviso to this section. The proviso states “Provided that all communications by the Data Controllers including but not limited to the rights of Data Subjects under this part shall may be refused when the Data Controller is, unable to identify or has a well founded basis for reasonable doubts as to the identity of the Data Subject or are manifestly unfounded, excessive and repetitive, with respect to the information sought by the Data Subject ”.

Recommendation: The proviso could read as follows “The proviso states “Provided that all communications by the Data Controllers including but not limited to the rights of Data Subjects under this part may be refused when the Data Controller is…”. We suggest the use of the ‘may’ as this makes the provision less limiting to the rights of the data controller.

Additionally, it is not completely clear what ‘included but not limited to...’ would entail. This could be clarified further.

PART B

CONSENT OF DATA SUBJECTS

Section 10: This section talks about the collection of personal data.

Comment: Section 10(3) lays down the information that a person must provide before collecting the personal data of an individual.

Comment: Section 10(3)(xi) states as follows “the time and manner in which it will be destroyed, or the criteria used to Personal data collected in pursuance of a grant of consent by the data subject to whom it pertains shall, if that consent is subsequently withdrawn for any reason, be destroyed forthwith: determine that time period;”. There seems to be a problem with the sentence construction and the rather complex sentence is difficult to understand.

Recommendation: This section could be reworked in such as way that two conditions are clear, one - the time and manner in which the data will be destroyed and two the status of the data once consent is withdrawn.

Comment: Section 10(3)(xiii) states that the identity and contact details of the data controller and data processor must be provided. However it fails to state that the data controller should provide more details with regard to the process for grievance redressal. It does not provide guidance on what type of information needs to go into this notice and the process of redressal. This could lead to very broad disclosures about the existence of redress mechanisms without providing individuals an effective avenue to pursue.

Recommendation: As part of the requirement for providing the procedure for redress, data controllers could specifically be required to provide the details of the Privacy Officers, privacy commissioner, as well as provide more information on the redressal mechanisms and the process necessary to follow.

Section 11:This section lays out the provisions where collection of personal data without prior consent is possible.

Comment: Section 11 states “Personal data may be collected or received from a third party by a Data Controller the prior consent of the data subject only if it is:..”. However as the title of the section suggests the sentence could indicate the situations where it is permissible to collect personal data without prior consent from the data subject”. Hence the word “without” is missing from the sentence. Additionally the sentence could state that the personal data may be collected or received directly from an individual or from a third party as it is possible to directly collect personal data from an individual without consent.

Recommendation:The sentence could read as “Personal data may be collected or received from an individual or a third party by a Data Controller without the prior consent of the data subject only if it is:..”.

Comment: Section 11(1)(i) states that the collection of personal data without prior consent when it is “necessary for the provision of an emergency medical service or essential services”. However it does not specify the kind or severity of the medical emergency.

Recommendation: In addition to medical emergency another exception could be made for imminent threats to life.

Section 12: This section details the Special provisions in respect of data collected prior to the commencement of this Act.

Comment: This section states that all data collected, processed and stored by data controllers and data processors prior to the date on which this Act comes into force shall be destroyed within a period of two years from the date on which this Act comes into force. Unless consent is obtained afresh within two years or that the personal data has been anonymised in such a manner to make re-identification of the data subject absolutely impossible. However this process can be highly difficult and impractical in terms of it being time consuming, expensive particularly, in cases of analog collections of data. This is especially problematic in cases where the controller cannot seek consent of the data subject due to change in address or inavailability or death. This will also be problematic in cases of digitized government records.

Recommendation: We suggest three ways in which the issue of data collected prior to the Act can be handled. One way is to make a distinction on the data based on whether the data controller has specified the purpose of the collection before collecting the data. If the purpose was not defined then the data can be deleted or anonymised. Hence there is no need to collect the data afresh for all the cases. The purpose of the data can also be intimated to the data subject at a later stage and the data subject can choose if they would like the controller to store or process the data.The second way is by seeking consent afresh only for the sensitive data. Lastly, the data controller could be permitted to retain records of data, but must necessarily obtain fresh consent before using them. By not having a blanket provision of retrospective data deletion the Act can address situations where deletion is complicated or might have a potential negative impact by allowing storage, deletion, or anonymisation of data based on its purpose and kind.

Comment: Section (2)(1)(i) of the Act states that the data will not be destroyed provided that effective consent is obtained afresh within two years. However as stated earlier the Act does not define effective consent.

Recommendation: The term effective consent needs to be defined in order to bring clarity to this provision.

PART C

FURTHER LIMITATIONS ON DATA CONTROLLERS

Section 16: This section deals with the security of personal data and duty of confidentiality.

Comment: Section 16(2) states “ Any person who collects, receives, stores, processes or otherwise handles any personal data shall be subject to a duty of confidentiality and secrecy in respect of it.” Similarly Section 16(3) states “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. However apart from the duty of confidentiality and secrecy the data collectors and processors could also have a duty to maintain the security of the data.” Though it is important for confidentiality and secrecy to be maintained, ensuring security requires adequate and effective technical controls to be in place.

Recommendation: This section could also emphasise on the duty of the data controllers to ensure the security of the data. The breach notification could include details about data that is impacted by a breach or attach as well as the technical details of the infrastructure compromised.

Section 17: This section details the conditions for the transfer of personal data outside the territory of India.

Comment: Section 17 allows a transfer of personal data outside the territory of India in 3 situations- If the Central Government issues a notification deciding that the country/international organization in question can ensure an adequate level of protection, compatible with privacy principles contained in this Act; if the transfer is pursuant to an agreement which binds the recipient of the data to similar or stronger conditions in relation to handling the data; or if there are appropriate legal instruments and safeguards in place, to the satisfaction of the data controller. However, there is no clarification for what would constitute ‘adequate’ or ‘appropriate’ protection, and it does not account for situations in which the Government has not yet notified a country/organisation as ensuring adequate protection. In comparison, the GDPR, in Chapter V^{^[5]}, contains factors that must be considered when determining adequacy of protection, including relevant legislation and data protection rules, the existence of independent supervisory authorities, and international commitments or obligations of the country/organization. Additionally, the GDPR allows data transfer even in the absence of the determination of such protection in certain instances, including the use of standard data protection clauses, that have been adopted or approved by the Commission; legally binding instruments between public authorities; approved code of conduct, etc. Additionally, it allows derogations from these measures in certain situations: when the data subject expressly agrees, despite being informed of the risks; or if the transfer is necessary for conclusion of contract between data subject and controller, or controller and third party in the interest of data subject; or if the transfer is necessary for reasons of public interest, etc. No such circumstances are accounted for in Section 17.

Recommendation: Additionally, data controllers and processors could be provided with a period to allow them to align their policies towards the new legislation. Making these provisions operational as soon as the Act is commenced might put the controllers or processors guilty of involuntary breaching the provisions of the Act.

Section 19: This section states the special provisions for sensitive personal data.

Comment: Section 19(2) states that in addition to the requirements set out under sub-clause (1), the Privacy Commission shall set out additional protections in respect of:i.sensitive personal data relating to data subjects who are minors; ii.biometric and deoxyribonucleic acid data; and iii.financial and credit data.This however creates additional categories of sensitive data apart from the ones that have already been created.^{^[6]} These additional categories can result in confusion and errors.

Recommendation: Sensitive data must not be further categorised as this can lead to confusion and errors. Hence all sensitive data could be subject to the same level of protection.

Section 20: This section states the special provisions for data impact assessment.

Comment: This section states that all data impact assessment reports will be submitted periodically to the State Privacy commission. This section does not make provisions for instances of circumstances in which such records may be made public. Additionally the data impact assessment could also include a human rights impact assessment.

Recommendation: The section could also have provisions for making the records of the impact assessment or relevant parts of the assessment public. This will ensure that the data controllers / processors are subjected to a standard of accountability and transparency. Additionally as privacy is linked to human rights the data impact assessment could also include a human rights impact assessment. The Act could further clarify the process for submission to State Privacy Commissions and potential access by the Central Privacy Commission to provide clarity in process.

Section 20 requires controllers who use new technology to assess the risks to the data protection rights that occur from processing. ‘New technology’ is defined to include pre-existing technology that is used anew. Additionally, the reports are required to be sent to the State Privacy Commission periodically. However, there is no clarification on the situations in which such an assessment becomes necessary, or whether all technology must undergo such an assessment before their use. Additionally, the differentiation between different data processing activities based on whether the data processing is incidental or a part of the functioning needs to be clarified. This differentiation is necessary as there are some data processors and controllers who need the data to function; for instance an ecommerce site would require your name and address to deliver the goods, although these sites do not process the data to make decisions. This can be compared to a credit rating agency that is using the data to make decisions as to who will be given a loan based on their creditworthiness. Example can taken from the GDPR, which in Article 35, specifies instances in which a data impact assessment is necessary: where a new technology, that is likely to result in a high risk to the rights of persons, is used; where personal aspects related to natural persons are processed automatically, including profiling; where processing of special categories of data (including data revealing ethnic/racial origin, sexual orientation etc), biometric/genetic data; where data relating to criminal convictions is processed; and with data concerning the monitoring of publicly accessible areas. Additionally, there is no requirement to publish the report, or send it to the supervising authority, but the controller is required to review the processor’s operations to ensure its compliance with the assessment report.

Recommendation: The reports could be sent to a central authority, which according to this Act is the Privacy Commission, along with the State Privacy Commission. Additionally there needs to be a differentiation between the incidental and express use of data. The data processors must be given at least a period of one year after the commencement of the Act to present their impact assessment report. This period is required for the processors to align themselves with the provisions of the Act as well as conduct capacity building initiatives.

PART C

RIGHTS OF A DATA SUBJECT

Section 21: This section explains the right of the data subject with regard to accessing her data. It states that the data subject has the right to obtain from the data controller information as to whether any personal data concerning her is collected or processed. The data controller also has to not only provide access to such information but also the personal data that has been collected or processed.

Comment: This section does not provide the data subject the right to seek information about security breaches.

Recommendation: This section could state that the data subject has the right to seek information about any security breaches that might have compromised her data (through theft, loss, leaks etc.). This could also include steps taken by the data controller to address the immediate breach as well as steps to minimise the occurrence of such breaches in the future.^{^[7]}

CHAPTER IV

INTERCEPTION AND SURVEILLANCE

Section 28: This section lists out the special provisions for competent organizations.

Comment: Section 28(1) states ”all provisions of Chapter III shall apply to personal data collected, processed, stored, transferred or disclosed by competent organizations unless when done as per the provisions under this chapter ”.This does not make provisions for other categories of data such as sensitive data.

Recommendation: This section needs to include not just personal data but also sensitive data, in order to ensure that all types of data are protected under this Act.

Section 30: This section states the provisions for prior authorisation by the appropriate Surveillance and Interception Review Tribunal.

Comment: Section 30(5) states “any interception involving the infringement of the privacy of individuals who are not the subject of the intended interception, or where communications relate to medical, journalistic, parliamentary or legally privileged material may be involved, shall satisfy additional conditions including the provision of specific prior justification in writing to the Office for Surveillance Reform of the Privacy Commission as to the necessity for the interception and the safeguards providing for minimizing the material intercepted to the greatest extent possible and the destruction of all such material that is not strictly necessary to the purpose of the interception.” This section needs to state why these categories of communication are more sensitive than others. Additionally, interceptions typically target people and not topics of communication - thus medical may be part of a conversation between two construction workers and a doctor will communicate about finances.

Recommendation: The section could instead of singling out “medical, journalistic, parliamentary or legally privileged material” state that “any interception involving the infringement of the privacy of individuals who are not the subject of the intended interception may be involved, shall satisfy additional conditions including the provision of specific prior justification in writing to the Office for Surveillance Reform of the Privacy Commission.

Section 37: This section details the bar against surveillance.

Comment: Section 37(1) states that “no person shall order or carry out, or cause or assist the ordering or carrying out of, any surveillance of another person”. The section also prohibits indiscriminate monitoring, or mass surveillance, unless it is necessary and proportionate to the stated purpose. However, it is unclear whether this prohibits surveillance by a resident of their own residential property, which is allowed in Section 5, as the same could also fall within ‘indiscriminate monitoring/mass surveillance’. For instance, in the case of a camera installed in a residential property, which is outward facing, and therefore captures footage of the road/public space.

Recommendation: The Act needs to bring more clarity with regard to surveillance especially with respect to CCTV cameras that are installed in private places, but record public spaces such as public roads. The Act could have provisions that clearly define the use of CCTV cameras in order to ensure that cameras installed in private spaces are not used for carrying out mass surveillance. Further, the Act could address the use of emerging techniques and technology such as facial recognition technologies, that often rely on publicly available data.

CHAPTER V

THE PRIVACY COMMISSION

Section 53: This section details the powers and functions of the Privacy Commission.

Comment: Section 53(2)(xiv) states that the Privacy Commission shall publish periodic reports “providing description of performance, findings, conclusions or recommendations of any or all of the functions assigned to the Privacy Commission”. However this Section does not make provisions for such reporting to happen annually and to make them publicly available, as well as contain details including financial aspects of matters contained within the Act.

Recommendation: The functions could include a duty to disclose the information regarding the functioning and financial aspects of matters contained within the Act. Categories that could be included in such reports include: the number of data controllers, number of data processors, number of breaches detected and mitigated etc.

CHAPTER IX

OFFENCES AND PENALTIES

Sections 73 to 80: These sections lay out the different punishments for controlling and processing data in contravention to the provisions of this Act.

Comment: These sections, while laying out different punishments for controlling and processing data in contravention to the provisions of this Act, mets out a fine extending upto Rs. 10 crore. This is problematic as it does not base these penalties on the finer aspects of proportionality, such as offences that are not as serious as the others.

Recommendation: There could be a graded approach to the penalties based on the degree of severity of the offence.This could be in the form of name and shame, warnings and penalties that can be graded based on the degree of the offence.
----------------------------------------------------------------------

Additional thoughts: As India moves to a digital future there is a need for laws to be in place to ensure that individual's rights are not violated. By riding on the push to digitization, and emerging technologies such as AI, a strong all encompassing privacy legislation can allow India to leapfrog and use these emerging technologies for the benefit of the citizens without violating their privacy. A robust legislation can also ensure a level playing field for data driven enterprises within a framework of openness, fairness, accountability and transparency.

^{^[1]} These seven principles include: Right to Access, Right to Rectification, Right to Erasure And Destruction of Personal Data,Right to Restriction Of Processing, Right to Object, Right to Portability of Personal Data,Right to Seek Exemption from Automated Decision-Making.

^{^[2]}The Privacy (Protection) Bill 2013: A Citizen’s Draft, Bhairav Acharya, Centre for Internet & Society, https://cis-india.org/internet-governance/blog/privacy-protection-bill-2013-citizens-draft

^{^[3]}General Data Protection Regulation, available at https://gdpr-info.eu/art-4-gdpr/.

^{^[4]} Antonio Vetro, Open Data Quality Measurement Framework: Definition and Application to Open Government Data, available at https://www.sciencedirect.com/science/article/pii/S0740624X16300132

^{^[5]} General Data Protection Regulation, available at https://gdpr-info.eu/chapter-5/.

^{^[6]} Sensitive personal data under Section 2(bb) includes, biometric data; deoxyribonucleic acid data;
sexual preferences and practices;medical history and health information;political affiliation;
membership of a political, cultural, social organisations including but not limited to a trade union as defined under Section 2(h) of the Trade Union Act, 1926;ethnicity, religion, race or caste; and
financial and credit information, including financial history and transactions.

^{^[7]} Submission to the Committee of Experts on a Data Protection Framework for India, Amber Sinha, Centre for Internet & Society, available at https://cis-india.org/internet-governance/files/data-protection-submission

For more details visit https://cis-india.org/internet-governance/blog/the-centre-for-internet-and-society2019s-comments-and-recommendations-to-the-indian-privacy-code-2018

DIDP #31 Diversity of employees at ICANN

Akash Sriram — 2018-08-21T09:26:48Z

We have requested ICANN to disclose information pertaining to the diversity of employees based on race and citizenship.

This data is being requested to verify ICANN’s claim of being an equal opportunities employer. ICANN’s employee handbook states that they “...provide equal opportunities and are committed to the principle of equality regardless of race, colour, ethnic or national origin, religious belief, political opinion or affiliation, sex, marital status, sexual orientation, gender reassignment, age or disability.” The data on the diversity of employees based on race and nationality of their employees will depict how much they have stuck to their commitment to delivering equal opportunities to personnel in ICANN and potential employees.

The request filed by CIS can be accessed here

For more details visit https://cis-india.org/internet-governance/blog/didp-31-diversity-of-employees-at-icann

Srikrishna panel upset at timing of Trai suggestions

Admin — 2018-07-19T14:17:19Z

The Justice BN Srikrishna Committee, which is drafting a model data protection and privacy law for India, is upset by the timing of recommendations made by the country’s telecom regulator this week, according to a senior member of the panel, as it fears this will delay the submission of its own report, due later this month.

The article by Megha Mandavia was published in Economic Times on July 19, 2018. Swaraj Paul Barooah was quoted.

On Monday, Telecom Regulatory Authority of India (Trai) in a surprise move recommended rules that give users control of their data and personal information while severely restricting ways in which telecom and internet firms can use customer data. Its rules are applicable for apps, browsers, operating systems and handset makers.

“Next week somebody will make some recommendations and that will have to be merged, then again somebody will make some other recommendations,” the person told ET. He added that the committee will look into Trai’s submissions.

On Wednesday, ET reported that officials of ministry of electronics and information technology (MeitY), besides industry groupings such as Internet and Mobile Association of India (IAMAI) and the Indian Cellular Association (ICA) were unhappy with Trai’s move.

“Like any other sector, the data protection Act will be the final thing. In respect of telecom matters, there will be a role for Trai as sectoral regulator but the basics of privacy will be governed by the data protection Act,” a MeitY official told ET.

Legal experts and industry analysts also questioned the need for the regulatory announcement just before the Justice Srikrishna committee releases its report, after a year of deliberations.

The high-powered group — consisting of jurists, academicians and policymakers — was formed last July with a brief to suggest principles for data privacy and a draft data protection bill for the country.

“Why is Trai then pre-empting the law?” said Kartik Maheshwari, leader for technology companies at law firm Nishith Desai Associates.

“Now that Trai has published its recommendations in public domain, the government may not be able to completely ignore them. But it’s so late in the day that it may not have any real impact on the final recommendations of the Justice Srikrishna committee,” he said.

The ten-member panel may incorporate some of Trai’s suggestions even as it submits its report to the union government next week. Trai chairman RS Sharma said the regulatory body has jurisdiction to tackle data protection under consumer interest, and those who feed off the industry — content providers, or apps, browsers, operating systems, and devices — were only custodians.

“We will send these recommendations to the committee, but we did not time it to coincide. We’re not dependent on the committee and we had issued this suo moto, since we felt the need to rigorously deliberate on the issue,” Sharma told ET on Tuesday.

There could be sector-specific laws within the general data protection framework for the telecom sector, he added.

Analysts say that regulators making public their recommendations before the data framework only adds to the confusion. “Industry was looking forward to a common primary framework. There are many independent suggestions coming from various regulators. It is creating confusion and chaos. I do expect considerable delay in finalising the law. Once the draft is out, there will be public consultation; all regulators will also have a say,” said Vidur Gupta, partner, government and public sector, EY India.

Others say that while there is clarity on what Trai is expecting, it has to be bound by the panel’s recommendations.

“It is good that a regulator has an eye on the market. It gives us an idea about what Trai has on its mind. The Reserve Bank of India also had not waited for Srikrishna Committee report before issuing a directive on data localisation,” said Swaraj Paul Barooah, policy director at Centre for Internet and Society.

“But the major point is that Trai’s recommendations are not binding; the data privacy law will be influenced by Justice Srikrishna committee only.”

For more details visit https://cis-india.org/internet-governance/news/economic-times-megha-mandavia-july-19-2018-srikrishna-panel-upset-at-timing-of-trai-suggestions

TRAI recommendations on data privacy raises eyebrows

Admin — 2018-07-19T13:33:44Z

The telecom regulator’s recommendations on data privacy have raised eyebrows over jurisdiction and timing, with IT ministry officials as well as companies questioning the need for it at a time when the government appointed Justice BN Srikrishna committee is in the final stages of drafting the data protection law.

The article by Surabhi Agarwal and Gulveen Aulakh was published in Economic Times on July 18, 2018. Swaraj Paul Barooah was quoted.

Telecom Regulatory Authority of India (TRAI) Chairman RS Sharma though countered that the sectoral watchdog has the jurisdiction to protect consumer interest in the sector, and those who feed off the industry - content providers, or apps, browsers, operating systems, and devices - need to be accountable as far as data protection is concerned.

TRAI Monday released its recommendations on the subject titled ‘Privacy, Security and Ownership of Data in the Telecom Sector’ which are applicable for apps, browsers, operating systems and handset makers.

An official of the Ministry of electronics and IT, which is tasked with drafting the data protection law, said that the Act will “prevail” over everything else. “Like any other sector, the data protection Act will be the final thing. In respect of telecom matters, there will be a role for TRAI as sectoral regulator but the basics of privacy will be governed by the data protection Act.”

The official also added that TRAI saying that their recommendations will be applicable till the data protection law comes into force "doesn't make sense since it won't have a legal mandate."

Industry bodies such as Internet and Mobile Association of India (IAMAI) and the Indian Cellular Association (ICA) have also criticised TRAI, saying the recommendations were “illegal” and akin to “jumping the gun” ahead of the release of the Srikrishna committee report.

Some of the clauses such as no use of metadata to identify individuals coupled with data minimisation will be detrimental to building the data business in the country, they said.

But Sharma was argued Trai was well within its rights to protect telecom consumers.

"Do I not have the jurisdiction to protect the interest of consumers in the telecom sector? I have that. And data protection of consumers in the telecom sector is an issue which is certainly related to the interest of consumers. I have deliberated on that issue, and I’m not saying that bring all those entities under my jurisdiction,” Sharma said.

He added that there is a regulatory imbalance because entities such as devices, OS, browsers and apps are not following any law. “So, the government can come up with a broad framework but till that time let the telecom rules apply on them too."

In its recommendations, TRAI said that individual users owned their data, or personal information, and entities such as devices were "mere custodians” and do not have primary rights over that information. It also said that the current framework for protection of personal information is “not sufficient” and suggested expanding the ambit of licence conditions governing telcos to all entities handling customer information.

In its statement, IAMAI, which represents companies such as Facebook and Google, called TRAI’s assertion that the existing framework is not sufficient to protect telecom consumers “contradictory.”

“The TRAI recommendations on privacy are premised on a voice and SMS regime. It is not meant for data driven business, which the app companies are. App companies use pseudo anonymous data and app companies do not give Call Detail Records. Incidentally, the Sri Krishna Committee under the Ministry of IT, which is the nodal body for apps as well as for handset manufacturers, is deeply, looking into this issue of consent, which is a fair thing to do.”

Voicing similar concerns, the ICA, which represents most of India’s top handset makers, said that the telecom watchdog has absolutely no powers to begin regulating on issues of privacy and ownership of data, leave alone having jurisdiction over devices, operating systems, browsers and applications.

“The industry rejects TRAI's attempts to expand its powers and usurp government's jurisdiction.” It added that TRAI “jumped the gun” by seeking to regulate the digital ecosystem without waiting for the data protection law under consideration by the Justice Srikrishna Committee. “This piecemeal approach is dangerous and unproductive.”

Handset makers such as Intex and Karbonn added they should be kept out of the ambit of the proposed regulations because they don't use customer data or monetise from it, which is mostly what apps do. Any additional pressure on indirect costs will lead to wafer-thin margins getting eroded further and consumers will have to bear the brunt, as it will lead to increase in prices of mobile phones.

Trai’s recommendations have been sent to the Department of Telecommunications (DoT) which has to take a final call on whether they will be adopted.

An official spokesperson for Zomato said that they have not been contacted by any of the regulatory bodies on this, as of now. “Our country is still undergoing the process of setting up a regulatory framework, and what happens between the TRAI recommendations and the B N Srikrishna's committee's draft for Data Protection bill will eventually help set up a much required benchmark.

In its suggestions, Trai said that as with telcos, all user data flows through smart devices, putting the device manufacturers, browsers, operating systems, and applications etc. in a prime position to collect and process the personal information of users. Since all user data passes through telcos and devices, appropriate steps must be taken to protect user privacy vis-a-vis these entities. “This will ensure, in prevailing circumstances, that the privacy of users is protected and maintained”.

Swaraj Paul Barooah, policy director at Center for Internet and Society, said that the recommendations is worrying at one level since “There is nothing in the telecom sector that requires interim urgent intervention and it may mean that the privacy framework maybe further delayed.”

For more details visit https://cis-india.org/internet-governance/news/economic-times-july-18-2018-surabhi-agarwal-and-gulveen-aulakh-trai-recommendations-on-data-privacy-raises-eyebrows

CIS submitted a response to a Notice of Enquiry by the US Government on International Internet Policy Priorities

Akriti Bopanna and Swagam Dasgupta — 2018-08-24T07:05:42Z

The Centre for Internet and Society drafted a response to a Notice of Inquiry (NOI) issued by the U.S. Commerce Department's National Telecommunications and Information Administration (NTIA) on "International Internet Policy Priorities."

The notice was based on different areas and we commented on the following three areas; The Free Flow of Information and Jurisdiction, The Multi-stakeholder Approach to Internet Governance, Privacy and Security. The submission was made by Swagam Dasgupta and Akriti Bopanna. Read the submission here.

The submission broadly covered the following aspects:

The Free Flow of Information and Jurisdiction

What are the challenges to the free flow of information online?
Which foreign laws and policies restrict the free flow of information online? What is the impact on U.S companies and users in general?
Have courts in other countries issued internet-related judgments that apply national laws to the global internet? What have the effects been on users?
What are the challenges to freedom of expression online?
What should be the role of all stakeholders globally—governments, companies, technical experts, civil society and end users — in ensuring free expression online?
What role can NTIA play in helping to reduce restrictions on the free flow of information over the internet and ensuring free expression online?
In which international organizations or venues might NTIA most effectively advocate for the free flow of information and freedom of expression? What specific actions should NTIA and the U.S. Government take?

Multistakeholder Approach to Internet Governance

Does the multistakeholder approach continue to support an environment for the internet to grow and thrive? If so, why? If not, why not?
Are there public policy areas in which the multistakeholder approach works best? If yes, what are those areas and why? Are there areas in which the multistakeholder approach does not work effectively? If there are, what are those areas and why?
Should the IANA Stewardship Transition be unwound? If yes, why and how? If not, why not?
What should be NTIA’s priorities within ICANN and the GAC?
Are there barriers to engagement at the IGF? If so, how can we lower these barriers?
Are there improvements that can be made to the IGF’s structure?

Privacy and Security

In what ways are cybersecurity threats harming international commerce? In what ways are the responses to those threats harming international commerce?

For more details visit https://cis-india.org/internet-governance/blog/cis-submitted-a-response-to-a-notice-of-enquiry-by-the-us-government-on-international-internet-policy-priorities

IETF 102 Montreal

Admin — 2018-08-01T22:42:31Z

The Internet Engineering Task Force (IETF) organized IETF 102 Montreal at Fairmont Queen Elizabeth Montreal in Canada from July 14 - 20, 2018. Gurshabad Grover participated remotely in the meetings of several Working Groups.

Meeting agenda of IETF102: https://datatracker.ietf.org/meeting/agenda

On July 19, in the meeting of the Human Rights Protocol Considerations (HRPC) Research Group, Gurshabad presented a review of the human rights considerations in the drafts of the Software Update for IoT Devices (SUIT) Working Group. His presentation was based on the review written by him and Sandeep Kumar, which is archived here.

Agenda of the HRPC session @ IETF102: https://datatracker.ietf.org/meeting/102/materials/agenda-102-hrpc-05

For more details visit https://cis-india.org/internet-governance/news/ietf-102-montreal

IEEE-SA InDITA Conference 2018

Admin — 2018-08-01T23:04:18Z

Gurshabad Grover participated in the IEEE-SA InDITA Conference 2018 organized by IEEE Standards Association held IIIT-Bangalore on July 10 and 11, 2018.

Gurshabad gave a brief presentation on how we could apply or reject 'Trust Through Technology' principles in the design of public biometric authentication. The agenda for the event can be accessed here. More details on event website here.

For more details visit https://cis-india.org/internet-governance/news/ieee-sa-indita-conference-2018

ICANN Diversity Analysis

akriti — 2018-08-29T11:19:46Z

The by-laws of The Internet Corporation for Assigned Names and Numbers (ICANN) state that it is a non-profit public-benefit corporation which is responsible at the overall level, for the coordination of the “global internet's systems of unique identifiers, and in particular to ensure the stable and secure operation of the internet's unique identifier systems”. As key stakeholders of ICANN are spread across the world, much of the communication discussing the work of ICANN takes place over email. This analysis of the diversity of participation at the ICANN processes, through a study of their mailing lists, was undertaken by Paul Kurian and Akriti Bopanna.

The by-laws of The Internet Corporation for Assigned Names and Numbers (ICANN) state that it is a non-profit public-benefit corporation which is responsible at the overall level, for the coordination of the “global internet's systems of unique identifiers, and in particular to ensure the stable and secure operation of the internet's unique identifier systems”.^{^[1]}Previously, this was overseen by the Internet Assigned Number Authority (IANA) under a US Government contract but in 2016, the oversight was handed over to ICANN, as a global multi-stakeholder body.^{^[2]} Given the significance of the multistakeholder nature of ICANN, it is imperative that stakeholders continue to question and improve the inclusiveness of its processes. The current blog post seeks to focus on the diversity of participation at the ICANN process.

As stakeholders are spread across the world, much of the communication discussing the work of ICANN takes place over email. Various [or X number of ] mailing lists inform members of ICANN activities and are used for discussions between them from policy advice to organizational building matters. Many of these lists are public and hence can be subscribed to by anyone and also can be viewed by non-members through the archives.

CIS analysed the five most active mailing lists amongst the working group mailing lists from January 2016 to May 2018, namely:

Outreach & Engagement,
Technology,
At-Large Review 2015 - 2019,
IANA Transition & ICANN Accountability, and
Finance & Budget mailing lists.

We looked at the diversity among these active participants by focusing on their gender, stakeholder grouping and region. In order to arrive at the data, we referred to public records such as the Statement of Interests which members have to give to the Generic Names Supporting Organization(GNSO) Council if they want to participate in their working groups. We also used, where available, ICANN Wiki and the LinkedIn profiles of these participants. Given below are some of the observations we made subsequent to surveying the data. We acknowledge that there might be some inadvertent errors made in the categorization of these participants, but are of the opinion that our inference from the data would not be drastically affected by a few errors.

The following findings were observed:

A total of 218 participants were present on the 5 mailing lists that were looked at.
Of these,, 92 were determined to be active participants (participants who had sent more than the median number of mails in their working group) out of which 75 were non-staff members.

Among the active non-staff participants:

Out of the 75 participants, 56 (74.7%) were male and 19 (25.3%) were female.
57.3% were identified to be members of the industry and technological community and 1.3% were identified as government representatives. 8.0% were representatives from Academia, 25.3% represented civil society and the remaining 8.0% were from fields that were uncategorizable with respect to the above, but were related to law and consultancy.
Only 14.7% of the participants were from Asia while the majority belonged to Africa and then North America with 24% and 22.7% participation respectively
Within Asia, we identified only one active participant from China.

Concerns

The vast number of the people participating and as an extension, influencing ICANN work are male constituting three fourth of the participants.
The mailing list are dominated by individuals from industry.. This coupled with the relative minority presence of the other stakeholders creates an environment where concerns emanating from other sections of the society could be overshadowed.
Only 14.7% of the participants were from Asia, which is concerning since 48.7% of internet users worldwide belong to Asia.^{^[3]}
China which has the world’s largest population of internet users (700 million people)^{^[4]} had only one active participant on these mailing lists.

ICANN being a global multistakeholder organization should ideally have the number of representatives from each region be proportionate to the number of internet users in that region. In addition to this, participation of women on these mailing lists need to increase to ensure that there is inclusive contribution in the functioning of the organization. We did not come across any indication of participation of individuals of non binary genders.

^{^[1]} https://cis-india.org/telecom/knowledge-repository-on-internet-access/icann

^{^[2]} https://www.icann.org/news/announcement-2016-10-01-en

^{^[3]} https://www.internetworldstats.com/stats.htm

^{^[4]} https://www.internetworldstats.com/stats3.htm

For more details visit https://cis-india.org/internet-governance/blog/icann-diversity-analysis

Digital Native: How smart cities can make criminals out of denizens

nishant — 2018-08-01T00:19:23Z

People download information and share it without knowing about the intellectual property rights. On social media bullying, harassment and hate speech find easy avenues.

The article was published in Indian Express on July 15, 2018.

I first heard about smart cities in 2003. Sitting in India, it seemed to be a very strange concept being developed in the Netherlands, where the planners were trying to arm an entire city with smartness. The idea was that if we deploy enough cameras, devices that see, machines that hear, and data connectivity that envelopes the city in a seamless cloud, it might lead to more order, discipline, and control. To me that felt like a strange experiment because under all of those different imaginations of the city as a neat, organised, controlled environment, were assumptions that were alien to my Indian sensibilities.

It was strange to look at all the promises that “smartness” would deliver — it would make human life easier. It would increase safety and create order out of chaos. It would build new lifestyles that are filled with assistive technologies. In all of these, was the imagination of the city as a laboratory — controlled and efficient, as opposed to riotous and serendipitous. The cities were positioned as filled with intention, so that the interruptions of people, animals, festivals, traffic and crowds would be removed through the deployment of these digital devices and networks. What needed to be preserved was the city and its infrastructure, rather than the individuals and communities that make the city alive and exciting. We wanted our infrastructure to be smart, taking decisions on our behalf, and shaping our lives through the algorithmic protocols that they were coded to embody.

In that faraway time, these had felt like idle speculations. Fifteen years on, I have now come to realise that the biggest motivation for building smart cities was not really facilitating human movement, habitation and habits. Indeed, at the heart of the smart city project was the setting up of a massive surveillance apparatus that would clinically diagnose the unwanted people and processes in the city, and surgically remove them — with the assistance of predictive technologies that would be implemented in policing and planning these city spaces.

Smart cities were not constructed to make people’s lives easier. They were constructed because, increasingly, all the people in a city are imagined as “users”, who need to be instructed through terms of services, how they must behave and live in these city spaces. One of the biggest cultural turns in the massification of the digital web was that almost all users were imagined as potential criminals by the very virtue of them being connected. Internet service providers and regulators knew that if people are connected, they will be violating the law at some point or another, sometimes unknowingly. People download information and share it without knowing about the intellectual property rights. On social media bullying, harassment and hate speech find easy avenues. The largest traffic on the internet is for pornographic and often banned material which finds its audiences on the connected web. Spammers, viruses, hijacked machines, and, often, searches for unexpected items lead people onto the dark web where the questionable human interactions happen frequently.

The introduction of the digital terms of services was essentially to presume that the user was a potential criminal who leases hardware and software, and, platforms from proprietary companies and governments could then control and discipline the user through comprehensive surveillance practices. Construction of smart cities performs a similar function in the physical space. Instead of thinking about citizens as co-owners who shape city spaces, smart cities establish a service level agreement with its occupants, and reduces them to users. Any deviation results in punitive action or devaluation, often curbing the movement, and the rights of belonging to the city spaces.

While it is true that smart technologies can facilitate certain aspects of human life, they depend on unfettered data collection, predictive profiling, correlative algorithms and conditions of extreme invasion and control — which are all predicated on the idea that you will falter. And when you do, the technologies will be there to witness, record, archive, and punish you for the daily transgressions till you are wiped into becoming a predictable, controlled, cleaned up drone that travels in docility across the networked edges of the city. We will be assimilated. Resistance will be futile.

For more details visit https://cis-india.org/raw/indian-express-july-15-2018-nishant-shah-digital-native-the-citys-watching

Government Gives Nod To Bill For Building DNA Databases In India, For 'Criminal Investigation And Justice Delivery'

Admin — 2018-07-13T15:25:13Z

The bill will be introduced in Parliament in the Monsoon session.

The article was published in the Huffington Post on July 5, 2018. Elonnai Hickok was quoted.

The government has set the path for creating a DNA bank storing citizen's profiles, as the Union Cabinet cleared a bill for the regulation and use of DNA for policing. The bill is meant to regulate the use of DNA for criminal investigation and justice delivery, and has provisions for the storage of genetic information. The DNA Technology (Use and Application) Regulation Bill 2018 was passed in a cabinet meeting, chaired by Prime Minister Narendra Modi, and seeks to expand the use of DNA to help solve crimes, identify missing persons, and determine biological relationships between people. It will be introduced in Parliament during the Monsoon Session beginning July 18.

Although the bill includes safeguards on how this data is meant to be used, it's worth pointing out that India still does not have any laws regarding data protection and privacy. The Justice BN Srikrishna Committee on data protection, which was formed in August 2017, was expected to present its report months ago, and there were strong leaks that it would come out in June. However, the report remains under wraps, and there there is no clarity about its recommendations. That's also only the first step, as it has to then be taken up by the government and made into a law.

Scientists who had helped draft the DNA Technology bill told The Telegraph that expanding the use of DNA in criminal investigations could lead to higher conviction rates, especially in cases of murder, rape or human trafficking, among other crimes involving the human body.

"We rely on DNA for two things - it helps establish beyond doubt the biological identity of an individual and it helps beyond doubt to determine whether there is any biological relationship between two persons," said Jayaraman Gowrishankar, former director and now an Indian National Science Academy senior scientist at the Centre for DNA Fingerprinting and Diagnostics in Hyderabad.

According to NDTV, there is also a provision for a jail term of up to three years for anyone who leaks information from one of the DNA databases being created, along with a fine of up to Rs 1 lakh. People seeking this information through illegal means face the same punishment.

In other countries, DNA profiles are also used for a number of businesses such as health care, ancestry information, and even DNA-based custom diet plans. However, the draft DNA bill states that the data collected can only be used for the identification of a person, and not other uses.

However, the accuracy of DNA testing in crime scenes has also been called into question over time. The possibility of cross contamination is incredibly high, and has led to innocent people going to prison.

Writing on the subject for The Hindustan Times, Elonnai Hickok, Director, Internet Governance at the Centre for Internet and Society added: "Policy needs to evolve past protections that are limited to process oriented legal privacy provisions, but instead to protections that are comprehensive — accounting for process and enabling the individual to control and know how her/ his data is being used and by whom. Other countries have recognised this and are taking important steps to empower the individual. India needs to do the same for its citizens."

For more details visit https://cis-india.org/internet-governance/news/huffington-post-july-5-2018-government-gives-nod-to-bill-for-building-dna-databases-in-india-for-criminal-investigation-and-justice-delivery

India's Latest Data Leak: People's Aadhaar Number And Bank Account Are Just One Google Search Away

Admin — 2018-07-13T15:18:46Z

Even Truecaller doesn't reveal this much.

The article by Gopal Sathe was published in Huffington Post on July 12, 2018.

Imagine being able to hack someone's personal data simply by entering their mobile phone number into a Google search. There is a website of the Andhra Pradesh government that's leaking people's phone numbers, Aadhaar numbers, father's names, passbook and bank account numbers, and the district and mandal where they live - all the link to all this information is the first result you get when you search for the phone numbers of people in the database.

The Andhra government has been leaking the personal data of more than 23,000 farmers who have received subsidies from the Andhra Pradesh Medicinal and Aromatic Plants Board, and organisation that encourages the growth of Ayurvedic medicines in the state. The subsidies are offered to farmers and tribals in the state, and all their personal data is available on an open database on an Andhra Government website.

The information is not behind any access control, and you can see all the records, click on them to get the details of anyone, or download everything as an Excel sheet. But what's perhaps worse is that simply by searching for the phone numbers of many of these farmers, we were able to find the detailed information about them. HuffPost India randomly chose a dozen farmers, and in each case, this database was the first result for their phone number on Google.

That's the most concerning part - in most cases, even when the information has leaked, it isn't readily apparent to people. You have to know the website address, or at the very least spend some time poring through dashboards. In the case of this latest leak, all you need is the person's phone number, and all their information is made visible. HuffPost India has reported this issue to the AP government, much like earlier leaks, although at the time of writing the data is still available online.

Who's held responsible?

This is just the latest in a long line of leaks from AP - in just the last few months, we've reported on a website that let you geo-locate homes on the basis of caste and religion; while another tracked all the medicines people buy, such as generic viagra, along with their phone numbers; and one that tracked pregnant women in ambulances in real time.

A government official we spoke to in AP Secretariat said that while all the departments have been digitised, an understanding of security - and privacy - is yet to come. "Even if you tell them, 'this data is not something you can publish', they disagree and say that it is needed for the beneficiaries to be able to access their own information," he explained.

Karan Saini, a security analyst and consultant who writes on issues of web security and privacy, told HuffPost that the various government departments are generally unresponsive when breaches like this are brought up.

"Lack of outreach is an issue with all of these organisations," said Saini. "NCIIPC is the only one that can even be found by someone looking at the surface. [These organisations] are hard to get a response from."

One reason for this, said Srinivas Kodali, a security researcher who has revealed a tremendous amount of leaks in the AP system, is that there is no official system of accountability in the government when it comes to data leaks.

In May 2017, the AP government passed the Andhra Pradesh Core Digital Data Authority Act, under which in section 37 it states that no legal proceeding shall lie against any officer or employee for anything which is in good faith done. What this means is that leaks and breaches are not something any official in the government can be held responsible for.

This act came out less than a month after the Centre for Internet and Society in Bengaluru published a report stating that 13 crore Aadhaar numbers were leaked - of which 2 crore were from Andhra Pradesh.

A lack of (human) resources

AP officials do acknowledge the problem. "There is a major shortage of cybersecurity professionals, and hiring them is a challenge," said V Premchand, head of the Andhra Pradesh Technology Service, who is in charge of the ongoing security work in the state. AP has seen a major security audit in May this year, and a privacy audit was announced last month.

"The work is ongoing but it is not something that can happen overnight," Premchand explained. However, others argue that the government isn't doing enough to make use of existing manpower. Unlike other countries, the Indian government does not have any real bug bounty program, where security researchers are incentivised to report weaknesses to organisations for cash rewards and recognition.

Sai Krishna Kothapalli, a student at IIT Guwahati and a security researcher, told HuffPost that the government actively discourages security experts from providing their support, rather than encouraging them.

"The US Department of Defense and others have a responsible disclosure program and a lot of people from India take part in that," he said. "Our talent is being used by them instead because the government here does not reply at all."

"India's top hackers are being employed by people outside the country, even though we have the talent here, because will you spend the time and effort to be ignored here, or report issues to a US company and make thousands of dollars instead?"

However, security audits in India are only being carried out by agencies that have been empaneled, and most of the hackers active here don't have the certification, he added. "They're too busy actually doing the work, while these big companies do audits, and leave all kinds of security issues behind."

For more details visit https://cis-india.org/internet-governance/news/huffington-post-gopal-sathe-july-12-2018-indias-latest-data-leak-is-so-basic-that-peoples-aadhaar-number-bank-account-and-fathers-name-are-just-one-google-search-away