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List of Recommendations on the Aadhaar Bill, 2016 - Letter Submitted to the Members of Parliament

Amber Sinha, Sumandro Chattapadhyay, Sunil Abraham, and Vanya Rakesh — 2016-03-21T08:50:09Z

On Friday, March 11, the Lok Sabha passed the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016. The Bill was introduced as a money bill and there was no public consultation to evaluate the provisions therein even though there are very serious ramifications for the Right to Privacy and the Right to Association and Assembly. Based on these concerns, and numerous others, we submitted an initial list of recommendations to the Members of Parliaments to highlight the aspects of the Bill that require immediate attention.

Download the submission letter: PDF.

Text of the Submission

On Friday, March 11, the Lok Sabha passed the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016. The Bill was introduced as a money bill and there was no public consultation to evaluate the provisions therein even though there are very serious ramifications for the Right to Privacy and the Right to Association and Assembly. The Bill has made it compulsory for all Indian to enroll for Aadhaar in order to receive any subsidy, benefit, or service from the Government whose expenditure is incurred from the Consolidate Fund of India. Apart from the issue of centralisation of the national biometric database leading to a deep national vulnerability, the Bill also keeps unaddressed two serious concerns regarding the technological framework concerned:

Identification without Consent: Before the Aadhaar project it was not possible for the Indian government or any private entity to identify citizens (and all residents) without their consent. But biometrics allow for non-consensual and covert identification and authentication. The only way to fix this is to change the technology configuration and architecture of the project. The law cannot be used to correct the problems in the technological design of the project.
Fallible Technology: The Biometrics Standards Committee of UIDAI has acknowledged the lack of data on how a biometric authentication technology will scale up where the population is about 1.2 billion. The technology has been tested and found feasible only for a population of 200 million. Further, a report by 4G Identity Solutions estimates that while in any population, approximately 5% of the people have unreadable fingerprints, in India it could lead to a failure to enroll up to 15% of the population. For the current Indian population of 1.2 billion the expected proportion of duplicates is 1/121, a ratio which is far too high. [1]

Based on these concerns, and numerous others, we sincerely request you to ensure that the Bill is rigorously discussed in Rajya Sabha, in public, and, if needed, also by a Parliamentary Standing Committee, before considering its approval and implementation. Towards this, we humbly submit an initial list of recommendations to highlight the aspects of the Bill that require immediate attention:

Implement the Recommendations of the Shah and Sinha Committees: The report by the Group of Experts on Privacy chaired by the Former Chief Justice A P Shah [2] and the report by the Parliamentary Standing Committee on Finance (2011-2012) chaired by Shri Yashwant Sinha [3] have suggested a rigorous and extensive range of recommendations on the Aadhaar / UIDAI / NIAI project and the National Identification Authority of India Bill, 2010 from which the majority sections of the Aadhaar Bill, 2016, are drawn. We request that these recommendations are seriously considered and incorporated into the Aadhaar Bill, 2016.
Authentication using the Aadhaar number for receiving government subsidies, benefits, and services cannot be made mandatory: Section 7 of the Aadhaar Bill, 2016, states that authentication of the person using her/his Aadhaar number can be made mandatory for the purpose of disbursement of government subsidies, benefits, and services; and in case the person does not have an Aadhaar number, s/he will have to apply for Aadhaar enrolment. This sharply contradicts the claims made by UIDAI earlier that the Aadhaar number is “optional, and not mandatory”, and more importantly the directive given by the Supreme Court (via order dated August 11, 2015). The Bill must explicitly state that the Aadhaar number is only optional, and not mandatory, and a person without an Aadhaar number cannot be denied any democratic rights, and public subsidies, benefits, and services, and any private services.
Vulnerabilities in the Enrolment Process: The Bill does not address already documented issues in the enrolment process. In the absence of an exhaustive list of information to be collected, some Registrars are permitted to collect extra and unnecessary information. Also, storage of data for elongated periods with Enrollment agencies creates security risks. These vulnerabilities need to be prevented through specific provisions. It should also be mandated for all entities including the Enrolment Agencies, Registrars, CIDR and the requesting entities to shift to secure system like PKI based cryptography to ensure secure method of data transfer.
Precisely Define and Provide Legal Framework for Collection and Sharing of Biometric Data of Citizens: The Bill defines “biometric information” is defined to include within its scope “photograph, fingerprint, iris scan, or other such biological attributes of an individual.” This definition gives broad and sweeping discretionary power to the UIDAI / Central Government to increase the scope of the term. The definition should be exhaustive in its scope so that a legislative act is required to modify it in any way.
Prohibit Central Storage of Biometrics Data: The presence of central storage of sensitive personal information of all residents in one place creates a grave security risk. Even with the most enhanced security measures in place, the quantum of damage in case of a breach is extremely high. Therefore, storage of biometrics must be allowed only on the smart cards that are issued to the residents.
Chain of Trust Model and Audit Trail: As one of the objects of the legislation is to provide targeted services to beneficiaries and reduce corruption, there should be more accountability measures in place. A chain of trust model must be incorporated in the process of enrolment where individuals and organisations vouch for individuals so that when a ghost is introduced someone has can be held accountable blame is not placed simply on the technology. This is especially important in light of the questions already raised about the deduplication technology. Further, there should be a transparent audit trail made available that allows public access to use of Aadhaar for combating corruption in the supply chain.
Rights of Residents: There should be specific provisions dealing with cases where an individual is not issued an Aadhaar number or denied access to benefits due to any other factor. Additionally, the Bill should make provisions for residents to access and correct information collected from them, to be notified of data breaches and legal access to information by the Government or its agencies, as matter of right. Further, along with the obligations in Section 8, it should also be mandatory for all requesting entities to notify the individuals of any changes in privacy policy, and providing a mechanism to opt-out.
Establish Appropriate Oversight Mechanisms: Section 33 currently specifies a procedure for oversight by a committee, however, there are no substantive provisions laid down that shall act as the guiding principles for such oversight mechanisms. The provision should include data minimisation, and “necessity and proportionality” principles as guiding principles for any exceptions to Section 29.
Establish Grievance Redressal and Review Mechanisms: Currently, there are no grievance redressal mechanism created under the Bill. The power to set up such a mechanism is delegated to the UIDAI under Section 23 (2) (s) of the Bill. However, making the entity administering a project, also responsible for providing for the frameworks to address the grievances arising from the project, severely compromises the independence of the grievance redressal body. An independent national grievance redressal body with state and district level bodies under it, should be set up. Further, the NIAI Bill, 2010, provided for establishing an Identity Review Committee to monitor the usage pattern of Aadhaar numbers. This has been removed in the Aadhaar Bill 2016, and must be restored.

Endnotes

[1] See: http://cis-india.org/internet-governance/blog/Flaws_in_the_UIDAI_Process_0.pdf.

[2] See: http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf.

[3] See: http://164.100.47.134/lsscommittee/Finance/15_Finance_42.pdf.

For more details visit https://cis-india.org/internet-governance/blog/list-of-recommendations-on-the-aadhaar-bill-2016

Press Release, March 15, 2016: The New Bill Makes Aadhaar Compulsory!

Amber Sinha — 2016-03-16T10:11:32Z

We published and circulated the following press release on March 15, 2016, to highlight the fact that the Section 7 of the Aadhaar Bill, 2016 states that authentication of the person using her/his Aadhaar number can be made mandatory for the purpose of disbursement of government subsidies, benefits, and services; and in case the person does not have an Aadhaar number, s/he will have to apply for Aadhaar enrolment.

Nandan Nilekani, the former chairperson of the Unique Identification Authority of India had repeatedly stated that Aadhaar is not mandatory. However, in the last few years various agencies and departments of the government, both at the central and state level, had made it mandatory in order to be able to avail beneficiary schemes or for the arrangement of salary, provident fund disbursals, promotion, scholarship, opening bank account, marriages and property registrations. In August 2015, the Supreme Court passed an order mandating that the Aadhaar number shall remain optional for welfare schemes, stating that no person should be denied any benefit for reason of not having an Aadhaar number, barring a few specified services.

The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, however, has not followed this mandate. Section 7 of the Bill states that “a person should be authenticated or give proof of the Aadhaar number to establish his/her identity” “as a condition for receiving subsidy, benefit or service”. Further, it reads, “In the case a person does not have an Aadhaar number, he/she should make an application for enrollment.” The language of the provision is very clear in making enrollment in Aadhaar mandatory, in order to be entitled for welfare services. Section 7 also says that “the person will be offered viable and alternate means of identification for receiving the subsidy, benefit or service. However, these unspecified alternate means will be made available in the event “an Aadhaar number is not assigned”. This language is vague and it is not clear whether it mandates alternate means of identification for those who choose not to apply for an Aadhaar number for any reason. The fact that it does make it mandatory to apply for an Aadhaar number for persons without it, may lead to the presumption that the alternate means are to be made available for those who may have applied for an Aadhaar number but it has not been assigned for any reason. It is also noteworthy that draft legislation is silent on what the “viable and alternate means of identification” could be. There are a number of means of identification, which are recognised by the state, and a schedule with an inclusive list could have gone a long way in reducing the ambiguity in this provision.

Another aspect of Section 7 which is at odds with the Supreme Court order is that it allows making an Aadhaar number mandatory for “for receipt of a subsidy, benefit or service for which the expenditure is incurred” from the Consolidated Fund of India. The Supreme Court had been very specific in articulating that having an Aadhaar number could not be made compulsory except for “any purpose other than the PDS Scheme and in particular for the purpose of distribution of foodgrains, etc. and cooking fuel, such as kerosene” or for the purpose of the LPG scheme. The restriction in the Supreme Court order was with respect to the welfare schemes, however, instead of specifying the schemes, Section 7 specified the source of expenditure from which subsidies, benefits and services can be funded, making the scope much broader. Section 7, in effect, allows the Central Government to circumvent the Supreme Court order if they choose to tie more subsidies, benefits and services to the Consolidated Fund of India.

These provisions run counter to the repeated claims of the government for the last six years that Aadhaar is not compulsory, nor is the specification by the Supreme Court for restricting use of Aadhaar to a few services only, reflected anywhere in the Bill. The “viable and alternate means” clause is too vague and inadequate to prevent denial of benefits to those without an Aadhaar number. The sum effect of these factors is to give the Central Government powers to make Aadhaar mandatory, for all practical purposes.

For more details visit https://cis-india.org/internet-governance/blog/press-release-aadhaar-15032016-the-new-bill-makes-aadhaar-compulsory

Press Release, March 11, 2016: The Law cannot Fix what Technology has Broken!

Japreet Grewal and Sunil Abraham — 2016-03-16T10:10:40Z

We published and circulated the following press release on March 11, 2016, as the Lok Sabha passed the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016. This Bill was proposed by finance minister, Mr. Arun Jaitley to give legislative backing to Aadhaar, being implemented by the Unique Identification Authority of India (UIDAI).

The Lok Sabha passed the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 today. This Bill was proposed by finance minister, Mr. Arun Jaitley to give legislative backing to Aadhaar, being implemented by the Unique Identification Authority of India (UIDAI).

The Bill was introduced as a money bill and there was no public consultation to evaluate the provisions therein even though there are very serious ramifications for the Right to Privacy and the Right to Association and Assembly. The Bill has made it compulsory for an individual to enrol under Aadhaar in order to receive any subsidy, benefit or service from the Government. Biometric information that is required for the purpose of enrolment has been deemed "sensitive personal information" and restrictions have been imposed on use, disclosure and sharing of such information for purposes other than authentication, disclosure made pursuant to a court order or in the interest of national security. Here, the Bill has acknowledged the standards of protection of sensitive personal information established under Section 43A of the Information Technology Act, 2000. The Bill has also laid down several penal provisions for acts that include impersonation at the time of enrolment, unauthorised access to the Central Identities Data Repository, unauthorised use by requesting entity, noncompliance with intimation requirements, etc.

Key Issues

1. Identification without Consent

Before the Aadhaar project it was not possible for the Indian government to identify citizens without their consent. But once the government has created a national centralized biometric database it will be possible for the government to identify any citizen without their consent. Hi-resolution photography and videography make it trivial for governments and also any other actor to harvest biometrics remotely. In other words, the technology makes consent irrelevant. A German ministers fingerprints were captured by hackers as she spoke using hand gesture at at conference. In a similar manner the government can now identify us both as individuals and also as groups without requiring our cooperation. This has direct implications for the right to privacy as we will be under constant government surveillance in the future as CCTV camera resolutions improve and there will be chilling effects on the right to free speech and the freedom of association. The only way to fix this is to change the technology configuration and architecture of the project. The law cannot be used as band-aid on really badly designed technology.

2. Fallible Technology

The technology used for collection and authentication as been said to be fallible. It is understood that the technology has been feasible for a population of 200 million. The Biometrics Standards Committee of UIDAI has acknowledged the lack of data on how a biometric authentication technology will scale up where the population is about 1.2 billion. Further, a report by 4G Identity Solutions estimates that while in any population, approximately 5% of the people have unreadable fingerprints, in India it could lead to a failure to enroll up to 15% of the population.

We know that the Aadhaar number has been issued to dogs, trees (with the Aadhaar letter containing the photo of a tree). There have been slip-ups in the Aadhaar card enrolment process, some cards have ended up with pictures of an empty chair, a tree or a dog instead of the actual applicants. An RTI application has revealed that the Unique Identification Authority of India (UIDAI) has identified more than 25,000 duplicate Aadhaar numbers in the country till August 2015.

At the stage of authentication, the accuracy of biometric identification depends on the chance of a false positiveâ€” the probability that the identifiers of two persons will match. For the current population of 1.2 billion the expected proportion of duplicates is 1/121, a ratio which is far too high. In a recent paper in EPW by Hans Mathews, a mathematician with CIS, shows that as per UIDAI's own statistics on failure rates, the programme would badly fail to uniquely identify individuals in India. [1]

Endnote

[1] See: http://cis-india.org/internet-governance/blog/epw-27-february-2016-hans-varghese-mathews-flaws-in-uidai-process

For more details visit https://cis-india.org/internet-governance/blog/press-release-aadhaar-11032016-the-law-cannot-fix-what-technology-has-broken

An Urgent Need for the Right to Privacy

sumandro — 2016-03-17T07:40:12Z

Along with a group of individuals and organisations from academia and civil society, we have drafted and are signatories to an open letter addressed to the Union government and urging the same to "urgently take steps to uphold the constitutional basis to the right to privacy and fulfil it’s constitutional and international obligations." Here we publish the text of the open letter. Please follow the link below to support it by joining the signatories.

Read and sign the open letter.

Text of the Open Letter

As our everyday lives are conducted increasingly through electronic communications the necessity for privacy protections has also increased. While several countries across the globe have recognised this by furthering the right to privacy of their citizens the Union Government has adopted a regressive attitude towards this core civil liberty. We urge the Union Government to take urgent measures to safeguard the right to privacy in India.

Our concerns are based on a continuing pattern of disregard for the right to privacy by several governments in the past. This trend has increased as can be plainly viewed from the following developments.

In 2015, the Attorney General in the case of *K.S. Puttaswamy v. Union of India*, argued before the Hon’ble Supreme Court that there is no right to privacy under the Constitution of India. The Hon'ble Court was persuaded to re-examine the basis of the right to privacy upsetting 45 years of judicial precedent. This has thrown the constitutional right to privacy in doubt and the several judgements that have been given under it. This includes the 1997 PUCL Telephone Tapping judgement as well. We urge the Union Government to take whatever steps are necessary and urge the Supreme Court to hold that a right to privacy exists under the Constitution of India.

Recently Mr. Arun Jaitley, Minister for Finance introduced the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016. This bill was passed on March 11, 2016 in the middle of budget discussion on a short notice as a money bill in the Lok Sabha when only 73 of 545 members were present. Its timing and introduction as a money bill prevents necessary scrutiny given the large privacy risks that arise under it. This version of the bill was never put up for public consultation and is being rushed through without adequate discussion. Even substantively it fails to give accountable privacy safeguards while making Aadhaar mandatory for availing any government subsidy, benefit, or service.

We urge the Union Government to urgently take steps to uphold the constitutional basis to the right to privacy and fulfil it’s constitutional and international obligations. We encourage the Government to have extensive public discussions on the Aadhaar Bill before notifying it. We further call upon them to constitute a drafting committee with members of civil society to draft a comprehensive statute as suggested by the Justice A.P. Shah Committee Report of 2012.

Signatories:

Amber Sinha, the Centre for Internet and Society
Japreet Grewal, the Centre for Internet and Society
Joshita Pai, Centre for Communication Governance, National Law University
Raman Jit Singh Chima, Access Now
Sarvjeet Singh, Centre for Communication Governance, National Law University
Sumandro Chattapadhyay, the Centre for Internet and Society
Sunil Abraham, the Centre for Internet and Society
Vanya Rakesh, the Centre for Internet and Society

For more details visit https://cis-india.org/internet-governance/blog/an-urgent-need-for-the-right-to-privacy

Will Only Legal Backing For Aadhaar Suffice?

praskrishna — 2016-03-16T02:31:52Z

Aadhaar is set to become mandatory, but the opponents of the scheme are not amused. Concerns about privacy of the Aadhaar number and the authenticity of the biometric data being collected have been expressed by people right from the beginning. But the government has not done much to address these issues.

The article was published in New Indian Express on March 14, 2016. Sunil Abraham was quoted.

“It does not matter what legislative backing they give it, it is still a surveillance programme. How can you have a privacy Bill for a surveillance programme? Legislative backing would be band-aid. I do not agree with it,” says Sunil Abraham, Executive Director of The Centre for Internet and Society. The society is a Bengaluru-based organisation looking at multi-disciplinary research and advocacy.

Abraham says that ever since the Aadhaar scheme was implemented, there was a massive degradation of civil liberties. “It is an opaque technology. Why should the government have such a database?” he asks.

Abraham says that the keys to the data should not have rested with the government where it is vulnerable. Instead, the government should have explored the concept of introducing smart cards issued to the citizen with the data stored on it.

Access to this data could not be had without the permission of the citizen, he says. At present, if something goes wrong or if the data is compromised, the government can always blame a lapse in technology, Abraham adds.

He questions the government’s logic where it assumes that only the poor section of society can misuse the benefits and says that it is well known that the problem exists in the supply chain and that the government has done nothing to address this.

Mathew Thomas of The Fifth Estate, an NGO, wonders what advantage the BJP suddenly found that they decided to pursue Aadhaar rather than send it to the trash bin as they had promised before the general elections.

Thomas says Aadhaar is flawed and is a fraud on the Constitution and the government has taken the money bill route simply to avoid a debate on it.

“Just passing a Bill is meaningless. This is radically wrong and we all know that protection of privacy is nonsense. How do they plan to plug the leakages? Have they even conducted a study, because there is no evidence of it. The correct beneficiary can get an LPG cylinder, but what is stopping the person from using it for an auto or for his car? That the government can lie to its own people is terrible,” he says.

A five-judge bench of the Supreme Court, which is hearing the matter on privacy concerns about Aadhaar, is expected to have a hearing by the end of this month.

For more details visit https://cis-india.org/internet-governance/new-indian-express-march-14-2016-will-only-legal-backing-for-aadhaar-suffice

The New Aadhaar Bill in Plain English

Amber Sinha, Vanya Rakesh and Vipul Kharbanda — 2016-03-11T04:41:38Z

We have put together a plain English version of the The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016.

The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016

Chapter I. PRELIMINARY

Section 1

This Act is called Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.
It will be applicable in whole of India (except the state of Jammu and Kashmir).
It will become applicable on a date to be notified by the Central Government.

Section 2

“Aadhaar number” is the identification number issued to an individual under the Act;
“Aadhaar number holder” is the person who has been given an Aadhaar number;
“authentication” is the process of verifying the Aadhaar number, demographic information and biometric information of any person by the Central Identities Data Repository (CIDR);
“authentication record” is the record of the authentication which will contain the identity of the requesting entity and the response of the CIDR;
“Authority” or “UIDAI” refers to the Unique Identification Authority of India established under this Act;
“benefit” means any relief or payment which may be notified by the Central Government;
“biometric information” means photograph, fingerprint, Iris scan, or any other biological attributes specified by regulations;
“Central Identities Data Repository” or “CIDR” means a centralised database containing all Aadhaar numbers, demographic information and biometric information and other related information;
“Chairperson” means the Chairperson of the UIDAI;
“core biometric information” means fingerprint, Iris scan, or any biological attributes specified by regulations;
“demographic information” includes information relating to the name, date of birth, address and other relevant information as specified by regulations. This information will not include race, religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history;
“enrolling agency” means an agency appointed by the UIDAI or a Registrar for collecting demographic and biometric information of individuals for issuing Aadhaar numbers;
“enrolment” means the process of collecting demographic and biometric information from individuals for the purpose of issuing Aadhaar numbers;
“identity information” in respect of an individual, includes his Aadhaar number, his biometric information and his demographic information;
“Member” includes the Chairperson and Member of the Authority appointed under section 12;
“notification” means a notification published in the Official Gazette and the expression “notified” with its cognate meanings and grammatical variations will be construed accordingly;
“prescribed” means prescribed by rules made by the Central Government under this Act;
“records of entitlement” means the records of benefits, subsidies or services provided to any individual under any government programme;
“Registrar” means any person authorized by the UIDAI to enroll individuals under the Act;
“regulations” means the regulations made by the UIDAI under this Act;
“requesting entity” means an agency that submits the Aadhaar number and other information of an individual to the CIDR for authentication;
“resident” means a person who has resided in India for atleast 182 days in the last twelve months before the date of application for enrolment;
“service” means any facility or assistance provided by the Central Government in any form;
“subsidy” means any form of aid, support, grant, etc. in cash or kind as notified by the Central Government.

Chapter II. ENROLMENT

Section 3

Every resident is entitled to get an Aadhaar number.
At the time of enrollment, the enrolling agency will inform the individual of the following details—

how their information will be used;
what type of entities the information will be shared with; and
that they have a right to see their information and also tell them how they can see their information.

After collecting and verifying the information given by the individuals, the UIDAI will issue an Aadhaar number to each individual.

Section 4

Once an Aadhaar number has been issued to a person, it will not be re-assigned to any other person.
An Aadhaar number will be a random number and will not contain any attributes or identity of the Aadhaar number holder.
if adopted by a service provider, an Aadhaar number may be accepted as proof of identity of the person.

Section 5

The UIDAI will take special measures to issue Aadhaar number to women, children, senior citizens, persons with disability, unskilled and unorganised workers, nomadic tribes or to such other persons who do not have any permanent residence and similar categories of individuals.

Section 6

The UIDAI may require Aadhaar number holders to update their Aadhaar information, so that it remains accurate.

Chapter III. AUTHENTICATION

Section 7

As a condition for receiving subsidy for which the expenditure is incurred from the Consolidated Fund of India, the Government may require that a person should be authenticated or give proof of the Aadhaar number to establish his/her identity. In the case a person does not have an Aadhaar number, he/she should make an application for enrolment. If an Aadhaar number is not assigned, the person will be offered viable and alternate means of identification for receiving the subsidy, benefit or service.

Section 8

The UIDAI will authenticate the Aadhaar information of people as per the conditions prescribed by the government and may also charge a fees for doing so.
Any requesting entity will— (a) take consent from the individual before collecting his/her Adhaar information; (b) use the information only for authentication with the CIDR;
The entity requesting authentication will also inform the individual of the following— (a) what type of information will be shared for authentication; (b) what will the information be used for; and (c) whether there is any alternative to submitting the Aadhaar information to the requesting entity.
The UIDAI will respond to the authentication request with yes, no, or other appropriate response and share identity information about the Aadhaar number holder but not share any biometric information.

Section 9

The Aadhaar number or its authentication will not be a proof of citizenship or domicile.

Section 10

The UIDAI may engage any number of entities to establish and maintain the CIDR and to perform any other functions specified by the regulations.

Chapter IV. UNIQUE IDENTIFICATION AUTHORITY OF INDIA

Section 11

The UIDAI will be established by the Central Government to be responsible for the processes of enrolment and authentication of Aadhaar numbers.
The UIDAI will be a body corporate with the power to buy and sell property, to enter into contracts and to sue or be sued.
The head office of the UIDAI will be in New Delhi.
The UIDAI may establish its offices at other places in India.

Section 12

The UIDAI will have a Chairperson, two part-time Members and a chief executive officer, who to be appointed by the Central Government.

Section 13

The Chairperson and Members will be competent people with at least 10 years experience and knowledge in technology, governance, law, development, economics, finance, management, public affairs or administration.

Section 14

The Chairperson and the Members will be appointed for 3 years and can be re-appointed after their term. But no Member or Chairperson will be more than 65 years of age.
The Chairperson and Members will take an oath of office and of secrecy.
The Chairperson or Member may— (a) resign from office, by giving an advance written notice of at least 30 days; or (b) be removed from his office because she/he gets disqualified on any of the grounds mentioned in section 15.
The salaries and allowances of the Members and Chairperson will be prescribed under the government.

Section 15

The Central Government may remove a Chairperson or Member, who—
(a) has gone bankrupt;
(b) is physically or mentally unable to do his/her job;
(c) has been convicted of an offence involving moral turpitude;
(d) has a financial conflict of interest in performing his/her functions; or
(e) has abused his/her position so that the government needs to remove him/her in public interest.
The Chairperson or a Member will be given a chance to present his/her side of the story before being removed, unless he/she is being removed on the grounds of bankruptcy or criminal conviction.

Section 16

An Ex-Chairperson or Ex-Member will have to take the approval of the Central Government,—

to accept any job in any entity (other than a government organization) which was associated with any work done for the UIDAI while that person was a Chairperson or Member, for a period of three years after ceasing to hold office;
to act or advise any entity on any particular transaction for which that person had provided advice to the UIDAI while he/she was the Chairperson or a Member;
to give advice to any person using information which was obtained as the Chairperson or a Member which is not available to the public in general; or
to accept any offer of employment or appointment as a director of any company with which he/she had direct and significant official dealings during his/her term of office, for a period of three years.

Section 17

The Chairperson will preside over the meetings of the UIDAI and have the powers and perform the functions of the UIDAI.

Section 18

The chief executive officer (CEO) of the UIDAI will not be below the rank of Additional Secretary to the Government of India.
The chief executive officer will be responsible for— (a) the day-to-day administration of the UIDAI; (b) implementing the programmes and decisions of the UIDAI; (c) making proposals for the UIDAI; (d) preparation of the accounts and budget of the UIDAI; and (e) performing any other functions prescribed in the regulations.
The CEO will annually submit the following things to the UIDAI for its approval — (a) a general report covering all the activities of the Authority in the previous year; (b) programmes of work; (c) the annual accounts for the previous year; and (d) the budget for the coming year.
The CEO will have administrative control over the officers and other employees of the Authority.

Section 19

The time and place of the meetings of the UIDAI and the rules and procedures of those meetings will be prescribed by regulations.
The meetings will be presided by the Chairperson, and if they are absent, then the senior most Member of the UIDAI.
All decisions at the meetings of the UIDAI will be taken by a majority vote. In case of a tie, the person presiding the meeting will have the casting vote.
All decisions of the UIDAI will be signed by the Chairperson or any other Member or the Member-Secretary authorised by the UIDAI in this behalf.
If any Member, who is a director of a company and because of this has any financial interest in matters coming up for consideration at a meeting, that member should disclose the financial interest and not take any further part in the discussions and decision on that matter.

Section 20

No actions or proceeding of the UIDAI will become invalid merely because of—

any vacancy in, or any defect in the constitution of, the UIDAI;
any defect in the appointment of a person as Chairperson or Member of the Authority; or
any irregularity in the procedure of the Authority not affecting the merits of the case.

Section 21

The UIDAI, with the approval of the Government, can decide on the number and types of officers and employees that it would require.
The salaries and allowances of the employees, officer and chief executive officer will be prescribed under the government.

Section 22.

Once the UIDAI is establishment—

all the assets and liabilities of the existing Unique Identification Authority of India, established by the Government of India through notification dated the 28th January, 2009, will stand transferred to the new UIDAI.
all data and information collected during enrolment, all details of authentication performed, by the existing Unique Identification Authority of India will be deemed to have been done by the UIDAI. All debts, liabilities incurred and all contracts entered into by the Unique Identification Authority of India will be deemed to have been entered into by the UIDAI;
all money due to the existing Unique Identification Authority of India will be deemed to be due to the UIDAI; and
all suits and other legal proceedings instituted by or against such Unique Identification Authority of India may be continued by or against the UIDAI.

Section 23

The UIDAI will develop the policy, procedure and systems for issuing Aadhaar numbers to individuals and perform their authentication. The powers and functions of the UIDAI include—

specifying the demographic information and biometric information required for enrolment and the processes for collection and verification of that information;
collecting demographic information and biometric information from people seeking Aadhaar numbers;
appointing of one or more entities to operate the CIDR;
generating and assigning Aadhaar numbers to individuals;
performing authentication of Aadhaar numbers;
maintaining and updating the information of individuals in the CIDR;
omitting and deactivating an Aadhaar number;
specifying the manner of use of Aadhaar numbers for the purposes of providing or availing of various subsidies and other purposes for which Aadhaar numbers may be used;
specifying the terms and conditions for appointment of Registrars, enrolling agencies and service providers and revocation of their appointments;
establishing, operating and maintaining of the CIDR;
sharing the information of Aadhaar number holders;
calling for information and records, conducting inspections, inquiries and audit of the operations of the CIDR, Registrars, enrolling agencies and other agencies appointed under this Act;
specifying processes relating to data management, security protocols and other technology safeguards under this Act;
specifying the conditions/procedures for issuance of new Aadhaar number to existing Aadhaar number holder;
levying and collecting the fees or authorising the Registrars, enrolling agencies or other service providers to collect fees for the services provided by them under this Act;
appointing committees necessary to assist the Authority in discharge of its functions;
promoting research and development for advancement in biometrics and related areas;
making and specifying policies and practices for Registrars, enrolling agencies and other service providers;
setting up facilitation centres and grievance redressal mechanisms;
other powers and functions as prescribed.

The Authority may,— (a) enter into agreements with various state governments and Union Territories for collecting, storing, securing or processing of information or delivery of Aadhaar numbers to individuals or performing authentication; (b) appoint Registrars, engage and authorize agencies to collect, store, secure, process information or do authentication or perform other functions under this Act. The Authority may engage consultants, advisors and other persons required for efficient discharge of its functions.

Chapter V. GRANTS, ACCOUNTS AND AUDIT AND ANNUAL REPORT

Section 24

The Central Government may grant money to the UIDAI as it may decide, upon due appropriation by Parliament.

Section 25

Fees/revenue collected by the UIDAI will be credited to the Consolidated Fund of India

Section 26

The UIDAI will prepare an annual statement of accounts in the format prescribed by Central Government
The Comptroller and Auditor-General will audit the account of the UIDAI annually at intervals decided by him, at the UIDAI’s expense.
The Comptroller and Auditor-General or his appointees will have the same powers of audit they usually have to audit Government accounts.
The UIDAI will forward the statement of accounts certified by the Comptroller and Auditor-General and the audit report, to the Central Government who will lay it before both houses of Parliament.

Section 27

The UIDAI will provide returns, statements and particulars as sought, to the Central Government, as and when required.
The UIDAI will prepare an annual report containing the description of work for previous years, annual accounts of previous year, and the programmes of work for coming year.
The copy of the annual report will be laid before both houses of Parliament by the Central Government.

Chapter VI. PROTECTION OF INFORMATION

Section 28

The UIDAI will ensure the security and confidentiality of identity information and authentication records.
The UIDAI will take measures to ensure that all information with the UIDAI, including CIDR records is secured and protected against access, use or disclosure and against destruction, loss or damage.
The UIDAI will adopt and implement appropriate technical and organisational security measures, and ensure the same are imposed through agreements/arrangements with its agents, consultants, advisors or other persons.
Unless otherwise provided, the UIDAI or its agents will not reveal any information in the CIDR to anyone.
An Aadhaar number holders may request UIDAI to provide access his information (excluding the core biometric information) as per the regulations specified.

Section 29

The core biometric information collected will not be a) shared with anyone for any reason, and b) used for any purpose other generation of Aadhaar numbers and authentication.
Identity information, other than core biometric information, may be shared only as per this Act and regulations specified under it.
Identity information available with a requesting entity will not be used for any purpose other than what is specified to the individual, nor will it be shared further without the individual’s consent.
Aadhaar numbers or core biometric information will not be made public except as specified by regulations.

Section 30

All biometric information collected and stored in electronic form will be deemed to be “electronic record” and “sensitive personal data or information” under Information Technology Act, 2000 and its provisions and rules will apply to it in addition to this Act.

Section 31

If the demographic or biometric information about any Aadhaar number holder changes, is lost or is found to be incorrect, they may request the UIDAI to make changes to their record in the CIDR, as necessary.
The identity information in the CIDR will not be altered, except as provided in this Act.

Section 32

The UIDAI will maintain the authentication records in the manner and for as long as specified by regulations.
Every Aadhaar number holder may obtain his authentication record as specified by regulations.
The UIDAI will not collect, keep or maintain any information about the purpose of authentication.

Section 33

The UIDAI may reveal identity information, authentication records or any information in the CIDR following a court order by a District Judge or higher. Any such order may only be made after UIDAI is allowed to appear in a hearing.
The confidentiality provisions in Sections 28 and 29 will not apply with respect to disclosure made in the interest of national security following directions by a Joint Secretary to the Government of India, or an officer of a higher rank, authorised for this purpose.
An Oversight Committee comprising Cabinet Secretary, and Secretaries of two departments — Department of Legal Affairs and DeitY— will review every direction under 33 B above.
Any directions under 33 B above are valid for 3 months, after which they may be extended following a review by the Oversight Committee.

Chapter VII. OFFENCES AND PENALTIES

Section 34

Impersonating or attempting to impersonate another person by providing false demographic or biometric information will punishable by imprisonment of up to three years, and/or fine of up to ten thousand rupees.

Section 35

Changing or attempting to change any demographic or biometric information of an Aadhaar number holder by impersonating another person (or attempting to do so), with the intent of i) causing harm or mischief to an Aadhaar number holder, or ii) appropriating the identity of an Aadhaar number holder, is punishable with imprisonment up to three years and fine up to ten thousand rupees.

Section 36

Collection of identity information by one not authorised by this Act, by way of pretending otherwise, is punishable with imprisonment up to three years or a fine up to ten thousand rupees (in case of an individual), and fine up to one lakh rupees (in case of a company).

Section 37

Intentional disclosure or dissemination of identity information, to any person not authorised under this Act, or in violation of any agreement entered into under this Act, will be punishable with imprisonment up to three years or a fine up to ten thousand rupees (in case of an individual), and fine up to one lakh rupees (in case of a company).

Section 38

The following intentional acts, when not authorised by the UIDAI, will be punishable with imprisonment up to three years and a fine not less than ten lakh rupees:

accessing or securing access to the CIDR;
downloading, copying or extracting any data from the CIDR;
introducing or causing any virus or other contaminant into the CIDR;
damaging or causing damage to the data in the CIDR;
disrupting or causing disruption to access to CIDR;
causing denial of access to an authorised to the CIDR;
revealing information in breach of (D) in Section 28, or Section 29;
destruction, deletion or alteration of any files in the CIDR;
stealing, destruction, concealment or alteration of any source code used by the UIDAI.

Section 39

Tampering of data in the CIDR or removable storage medium, with the intention to modify or discover information relating to Aadhaar number holder will be punishable with imprisonment up to three years and a fine up to ten thousand rupees.

Section 40

Use of identity information in violation of Section 8 (3) by a requesting entity will be punishable with imprisonment up to three years and/or a fine up to ten thousand rupees (in case of an individual), and fine up to one lakh rupees (in case of a company).

Section 41

Violation of Section 8 (3) or Section 3 (2) by a requesting entity or enrolling agency will be punishable with imprisonment up to one year and/or a fine up to ten thousand rupees (in case of an individual), and fine up to one lakh rupees (in case of a company).

Section 42

Any offence against this Act or regulations made under it, for which no specific penalty is provided, will be punishable with be punishable with imprisonment up to one year and/or a fine up to twenty five thousand rupees (in case of an individual), and fine up to one lakh rupees (in case of a company).

Section 43

In case of an offence under Act committed by a Company, all person in charge of and responsible for the conduct of the company will also be held to be guilty and liable for punishment unless they can prove lack of knowledge of the offense or that they had exercised all due diligence to prevent it.
In case an offence is committed by a Company with the consent, connivance or neglect of a director, manager, secretary or other officer of a company, they will also be held guilty of the offence.

Section 44

This Act will also apply to offences committed outside of India by any person, irrespective of their nationality, if the offence involves any data in the CIDR.

Section 45

Offences under this Act will not be investigated by police officers below the rank of Inspector of Police.

Section 46

Penalties imposed under this Act will not prevent imposition of any other penalties or punishment under any other law in force.

Section 47

Courts will take cognizance of offences under this Act only upon complaint being made by the UIDAI or any officer authorised by it.
No court inferior to that of a Chief Metropolitan Magistrate or a Chief Judicial Magistrate will try any offence under this Act.

Chapter VIII. MISCELLANEOUS

Section 48

Central Government has the power to supersede the UIDAI, through a notification, not for longer than six months, in the following circumstances: i) In case of circumstances beyond the control of the UIDAI, ii) The UIDAI has defaulted in complying with directions of the Central Government, affecting financial position of the UIDAI, iii) Public emergency
Upon publication of notification, Chairperson and Members of the UIDAI must vacate the office
Powers, functions and duties will be performed by person(s) authorised by the President.
Properties controlled and owned by UIDAI will vest in the Central Government.
Central Government will reconstitute the UIDAI upon expiration of supersession, with fresh appointment of Chairperson and Members.

Section 49

Chairperson, members, employees etc. are deemed to be public servants within the meaning of section 21 of the Indian Penal Code.

Section 50

Central Government has the power to issue directions to the UIDAI on questions of policy (to be decided by the Government), except technical and administrative matters and the UIDAI will be bound by it.
The UIDAI will be given an opportunity to express views before direction is given.

Section 51

The UIDAI may delegate its powers and functions to a Member or officer of the UIDAI.

Section 52

No suit, prosecution or other legal proceedings will lie against the Central Government, UIDAI, Chairperson, any Member, officer, or other employees of the UIDAI for an act done in good faith.

Section 53

The Central Government has the power to makes Rules for matters prescribed under this provision.

Section 54

UIDAI has the power to make regulations for matters prescribed under this provision.

Section 55

Rules and regulations under this Act will be laid before each House of Parliament for a total period of thirty days, both Houses must agree in making modification, and then the Rules will come into effect.

Section 56

Provisions of this Act are in addition to, and not in derogation of any other law currently in effect.

Section 57

This Act will not prevent use of Aadhaar number for other purposes under law by the State or other bodies.

Section 58

The Central Government may pass an order to remove a difficulty in giving effect to the provisions of this Act, not beyond three years from the commencement of this Act.

Section 59

Action take by Central Government under the Resolution of the Government of India for setting up the UIDAI or by the Department of Electronics and Information Technology under the notification including the UIDAI under the Ministry of Communications and Information Technology will be deemed to have been validly done or taken.

STATEMENT OF OBJECTS AND REASONS

Correct identification of targeted beneficiaries for delivery of subsidies, services, frants, benefits, etc has become a challenge for the Government
This has proved to be a major hindrance for successful implementation of these programmes.
In the absence of a credible system to authenticate identity of beneficiaries, it is difficult to ensure that the subsidies, benefits and services reach to intended beneficiaries.
The UIDAI was established to lay down policies and implement the Unique Identification Scheme of the Government, by which residents of India were to be provided unique identity number.
Upon successful authentication, this number would serve as proof of identity for identification of beneficiaries for transfer of benefits, subsidies, services and other purposes.
With increased use of the Aadhaar number, steps to ensure security of such information need to be taken and offences pertaining to certain unlawful actions, created.
It has been felt that the processes of enrolment, authentication, security, confidentiality and use of Aadhaar related information must be made statutory.
The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 seeks to provide for issuance of Aadhaar numbers to individuals on providing his demographic and biometric information to the UIDAI, requiring Aadhaar numbers for identifying an individual for delivery of benefits, subsidies, and services, authentication of the Aadhaar number, establishment of the UIDAI, maintenance and updating the information of individuals in the CIDR, state measures pertaining to security, privacy and confidentiality of information in possession or control of the UIDAI including information stored in the Central Identities Data Repository and identify offences and penalties for contravention of relevant statutory provisions.

For more details visit https://cis-india.org/internet-governance/blog/the-new-aadhaar-bill-in-plain-english

GNI-Industry Dialogue Learning Session: Human Rights Impact Assessments and Due Diligence in the ICT sector

elonnai — 2016-04-06T15:42:41Z

Elonnai Hickok attended the meeting organized by Global Network Initiative on March 11, 2016 in Washington D.C.

The GNI welcomed its new observers from the Telecommunications Industry Dialogue by holding a learning session in conjunction with the GNI Board Meeting on March 10. This learning session aimed to increase understanding between the GNI and the ID by examining some of the common challenges that face ICT companies in the area of human rights due diligence and highlighting good practices. A second objective was to help the GNI develop a learning program and materials that will be useful for its members and draw on their expertise. Finally, this learning session informed the review of the GNI Implementation Guidelines that will take place during 2016.

The session took place according to the Chatham House Rule. Each short presentation was followed by a space for questions and answers.

Human Rights Impact Assessments in the ICT sector – Michael Samway
The Human Rights Due Diligence Process at Nokia – Laura Okkonen
Yahoo’s approach to Human Rights Impact Assessments– Nicole Karlebach and Katie Shay
Orange’s challenges and approach to doing business in Africa – Yves Nissim
Microsoft’s human rights impacts and the warrant case – Steve Crown and Bernard Shen
TeliaSonera’s approach to withdrawing from Eurasia – Patrik Hiselius
Considerations for company due diligence on the ground – Kathleen Reen and Babette Ngene, Internews

For discussion:

What are some of the common challenges facing current GNI member companies and ID member companies?
What do we consider to be good practices that are applicable to all?
What lessons can be applied to the review of the GNI Implementation Guidelines that will take place during 2016?

For more details visit https://cis-india.org/internet-governance/news/gni-industry-dialogue-learning-session-human-rights-impact-assessments-and-due-diligence-in-the-ict-sector

Are we Losing the Right to Privacy and Freedom of Speech on Indian Internet?

Amber Sinha — 2016-03-16T14:44:19Z

The article was published in DNA on March 10, 2016.

Last month, it was reported that National Security Council Secretariat (NSCS) had proposed the setting up of a National Media Analytics Centre (NMAC). This centre’s mandate would be to monitor blogs, media channels, news outlets and social media platforms. Sources were quoted as stating that the centre would rely upon a tracking software built by Ponnurangam Kumaraguru, an Assistant Professor at the Indraprastha Institute of Information Technology in Delhi. The NMAC seems to mirror other similar efforts in countries such as US, Canada, Australia and UK, to monitor online content for the reasons as varied as prevention of terrorist activities, disaster relief and criminal investigation.

The NSCS, the parent body that this centre will fall under, is a part of the National Security Council, India’s highest agency looking to integrate policy-making and intelligence analysis, and advising the Prime Minister’s Office on strategic issues as well as domestic and international threats. The NSCS represents the Joint Intelligence Committee and its duties include the assessment of intelligence from the Intelligence Bureau, Research and Analysis Wing (R&AW) and Directorates of Military, Air and Naval Intelligence, and the coordination of the functioning of intelligence agencies.

From limited reports available, it appears that the tracking software used by NMAC will generate tags to classify post and comments on social media into negative, positive and neutral categories, paying special attention to “belligerent” comments. The reports say that the software will also try to determine if the comments are factually correct or not. The idea of a government agency systematically tracking social media, blogs and news outlets and categorising content as desirable and undesirable is bound to create a chilling effect on free speech online. The most disturbing part of the report suggested that the past pattern of writers’ posts would be analysed to see how often her posts fell under the negative category, and whether she was attempting to create trouble or disturbance, and appropriate feedback would be sent to security agencies based on it. Viewed alongside the recent events where actors critical of the government and holding divergent views have expressed concerns about attempts to suppress dissenting opinions, this initiative sounds even more dangerous, putting at risk individuals categorised as “negative” or “belligerent”, for exercising their constitutionally protected right to free speech.

Getty Images

It has been argued that the Internet is a public space, and should be treated as subject to monitoring by the government as any other space. Further, this kind of analysis does not concern itself with private communication between two or more parties but only with publicly available information. Why must we raise eyebrows if the government is accessing and analysing it for the purposes of legitimate state interests? There are two problems with this argument. First, any surveillance of communication must always be limited in scope, specific to individuals, necessary and proportionate, and subject to oversight. There are no laws passed by the Parliament in India which allow for mass surveillance measures. Such activities are being conducted through bodies like NSC which came into existence through an Executive Order and have no clear oversight mechanisms built into its functioning. A quick look at the history of intelligence and surveillance agencies in India will show that none of them have been created through a legislation. A host of surveillance agencies have come up in the last few years including the Central Monitoring System, which was set up to monitor telecommunications, and the absence of legislative pedigree translates into lack of appropriate controls and safeguards, and zero public accountability.

The second and the larger issue is that the scale and level of granularity of personal information available now is unprecedented. Earlier, our communications with friends and acquaintances, our movements, our association, political or otherwise, were not observable in the manner it is today. It would be remiss to underestimate the importance of personal information merely because it exists in the public domain. The ability to act without being subject to monitoring and surveillance is key to the right to free speech and expression. While we accept the importance of free speech and the value of an open internet and newer technologies to enable it, we do not give sufficient importance to how these technologies are affecting the right to privacy.

Getty Images

In the last few years, the social media scene in India has been characterised by extreme polemic with epithets such as ‘bhakt’, ‘sanghi’, ‘sickular’ and ‘presstitutes’ thrown around liberally, turning political discussions into a mess of ugliness. It remains to be seen whether the NMAC intends to deal with the professional trolls who rely on a barrage of abuse to disrupt public conversations online. However, the appropriate response would not be greater surveillance, let alone a body like NMAC, with a sweeping mandate and little accountability.

Link to the original here.

For more details visit https://cis-india.org/internet-governance/blog/dna-amber-sinha-march-10-2016-are-we-losing-right-to-privacy-and-freedom-of-speech-on-indian-internet

Aadhaar Bill fails to incorporate suggestions by the Standing Committee

amber — 2016-03-10T15:58:57Z

In 2011, a standing committee report led by Yashwant Sinha had been scathing in its indictments of the Aadhaar BIll introduced by the UPA government. Five years later, the NDA government has introduced a new bill which is a rehash of the same. I look at the concerns raised by the committee report, none of which have been addressed by the new bill.

The article was published by The Wire on March 10, 2016

In December, 2010, the UPA Government introduced the National Identification Authority of India Bill, 2010 in the Parliament. It was subsequently referred to a Standing Committee on Finance by the Speaker of Lok Sabha under Rule 331E of the the Rules of Procedure and Conduct of Business in Lok Sabha. This Committee, headed by BJP leader Yashwant Sinha took evidence from the Minister of Planning and the UIDAI from the government, as well as seeking the view of parties such as the National Human Rights Commission, Indian Banks Association and researchers like Dr Reetika Khera and Dr. Usha Ramanathan. In 2011, having heard from various parties and considering the concerns and apprehensions about the UID scheme, the Committee deemed the bill unacceptable and suggested a re-consideration of the the UID scheme as well as the draft legislation.

The Aadhaar programme has so far been implemented under the Unique Identification Authority of India, a Central Government agency created through an executive order. This programme has been shrouded in controversy over issues of privacy and security resulting in a Public Interest Litigation filed by Judge Puttaswamy in the Supreme Court. While the BJP had criticised the project as well as the draft legislation when it was in opposition, once it came to power and particularly, after it launched various welfare schemes like Digital India and Jan Dhan Yojna, it decided to continue with it and use Aadhaar as the identification technology for these projects. In the last year, there have been orders passed by the Supreme Court which prohibited making Aadhaar mandatory for availing services. One of the questions that the government has had to answer both inside and outside the court on the UID project is the lack of a legislative mandate for a project of this size. About five years later, the new BJP led government has come back with a rehash of the same old draft, and no comments made by the standing committee have been taken into account.

The Standing Committee on the old bill had taken great exception to the continued collection of data and issuance of Aadhaar numbers, while the Bill was pending in the Parliament. The report said that the implementation of the provisions of the Bill and continuing to incur expenditure from the exchequer was a circumvention of the prerogative powers of the Parliament. However, the project has continued without abeyance since its inception in 2009. I am listing below some of the issues that the Committee identified with the UID project and draft legislation, none of which have been addressed in current Bill.

One of the primary arguments made by proponents of Aadhaar has been that it would be useful in providing services to marginalized sections of the society who currently do not have identification cards and consequently, are not able to receive state sponsored services, benefits and subsidies. The report points that the project would not be able to achieve this as no statistical data on the marginalized sections of the society are being used to by UIDAI to provide coverage to them. The introducer systems which was supposed to provide Aadhaar numbers to those without any form of identification, has been used to enroll only 0.03% of the total number of people registered. Further, the Biometrics Standards Committee of UIDAI has itself acknowledged the issues caused due to a high number of manual laborers in India which would lead to sub-optimal fingerprint scans. A report by 4G Identity Solutions estimates that while in any population, approximately 5% of the people have unreadable fingerprints, in India it could lead to a failure to enroll up to 15% of the population. In this manner, the project could actually end up excluding more people.

The Report also pointed to a lack of cost-benefit analysis done before going ahead with scheme of this scale. It makes a reference to the report by the London School of Economics on the UK Identity Project which was shelved due to a) huge costs involved in the project, b) the complexity of the exercise and unavailability of reliable, safe and tested technology, c) risks to security and safety of registrants, d) security measures at a scale that will result in substantially higher implementation and operational costs and e) extreme dangers to rights of registrants and public interest. The Committee Report insisted that such global experiences remained relevant to the UID project and need to be considered. However, the new Bill has not been drafted with a view to address any of these issues.

The Committee comes down heavily on the irregularities in data collection by the UIDAI. They raise doubts about the ability of the Registrars to effectively verify the registrants and a lack of any security audit mechanisms that could identify issues in enrollment. Pointing to the news reports about irregularities in the process being followed by the Registrars appointed by the UIDAI, the Committee deems the MoUs signed between the UIDAI and the Registrars as toothless. The involvement of private parties has been under question already with many questions being raised over the lack of appropriate safeguards in the contracts with the private contractors.

Perhaps the most significant observation of the Committee was that any scheme that facilitates creation of such a massive database of personal information of the people of the country and its linkage with other databases should be preceded by a comprehensive data protection law. By stating this, the Committee has acknowledged that in the absence of a privacy law which governs the collection, use and storage of the personal data, the UID project will lead to abuse, surveillance and profiling of individuals. It makes a reference to the Privacy Bill which is still at only the draft stage. The current data protection framework in the Section 43A rules under the Information Technology Act, 2000 are woefully inadequate and far too limited in their scope. While there are some protection built into Chapter VI of the new bill, these are nowhere as comprehensive as the ones articulated in the Privacy Bill. Additionally, these protections are subject to broad exceptions which could significantly dilute their impact.

For more details visit https://cis-india.org/internet-governance/blog/aadhaar-bill-fails-to-incorporate-suggestions-by-the-standing-committee

A comparison of the 2016 Aadhaar Bill, and the 2010 NIDAI Bill

Vanya Rakesh — 2016-03-09T04:08:01Z

This blog post does a clause-by-clause comparison of the provisions of National Identification Authority of India Bill, 2010 and the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016

Title

2010 Bill: The Bill was titled as the National Identification Authority of India Bill, 2010.

2016 Bill : The Bill has been titled as the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.

Purpose/Object Clause

2010 Bill: The purpose of Bill was stated to provide for the establishment of the National Identification Authority of India to issue identification numbers to residents of India as well as certain other classes of individuals , to facilitate access to benefits and services, to which they are entitled.

2016 Bill : The purpose of this Bill has been stated to ensure targeted delivery of subsidies, benefits and services to residents of India in an efficient and transparent manner by assigning unique identity numbers to such individuals.

Definitions

2010 Bill: “Authentication” was defined as the process in which the Aadhaar number, along with other attributes (including biometrics) are submitted to the Central Identities Data Repository for verification, done on the basis of information, data or documents available with the Repository.
2016 Bill : “Authentication” has been defined as the process by which the Aadhaar number, along with demographic or biometric information of an individual is submitted to the Central Identities Data Repository for the purpose of verification, done on the basis of the correctness of (or lack of) information available with it.

2010 Bill: “Authentication Record” was not defined in the previous Bill.
2016 Bill : “Authentication Record” has been defined under clause 2(d) as the record of the time of authentication, the identity of the entity requesting such record and the response provided by the Authority for this purpose.

2010 Bill: “Authority” was defined under clause 2(d) as National Identification Authority of India established under provisions of the Bill.

2016 Bill :“Authority” has been defined under clause 2(e) as Unique Identification Authority of India established under provisions of the Bill.

2010 Bill: “Benefit” was not defined in the previous Bill.
2016 Bill : “Benefit” has been defined under clause 2(f) as any advantage, gift, reward, relief, or payment (either in cash or kind), or such other benefits, which is provided to an

individual/ a group of individuals as notified by the Central Government.

2010 Bill: “Biometric Information” was defined under clause 2(e) as a set of biological attributes of an individual as may be specified by regulations.
2016 Bill : “Biometric Information” has been defined under clause 2(g) as biological attributes of an individual like photograph, fingerprint, Iris scan, or other such biological

attributes as may be specified by regulations.

2010 Bill: “Core Biometric Information” was not defined in the previous Bill.
2016 Bill : “Core Biometric Information” has been defined under clause 2(j) as biological attribute of an individual like fingerprint, Iris scan, or such other biological attribute as

may be specified by regulations.

2010 Bill: “Demographic Information” was defined under clause 2(h) as information specified in the regulations for the purpose of issuing an Aadhaar number, like information relating to the name, age, gender and address of an individual (other than race, religion, caste, tribe, ethnicity, language, income or health), and such other information.
2016 Bill : “Demographic Information” has been defined under clause 2(k) as information of an individual as may be specified by regulations for the purpose of issuing an Aadhaar number like information relating to the name, date of birth, address and other relevant information, excluding race, religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history of an individual.

2010 Bill: “Enrolling Agency” was defined under clause 2(i) as an agency appointed by the Authority or the Registrars for collecting information under the Act.
2016 Bill : “Enrolling Agency” has been defined under clause 2(l) as an agency appointed by the Authority or a Registrar for collecting demographic and biometric information of individuals under this Act.

2010 Bill: “Member” was defined under clause 2(l) to include the Chairperson and a part-time Member of the Authority appointed under the provisions of the Bill.
2016 Bill : “Member” has been defined under clause 2(o) to include the Chairperson and Member of the Authority appointed under the provisions of the Bill.

2010 Bill: “Records of Entitlement” was not defined under the previous Bill.
2016 Bill : “Records of Entitlement” has been defined under clause 2(r) as the records of benefits, subsidies or services provided to, or availed by, any individual under any programme.

2010 Bill: “Requesting Entity” was not defined under the previous Bill.
2016 Bill : “Requesting Entity” has been defined under clause 2(u) as an agency or person that submits information of an individual comprising of the Aadhaar number and

demographic or biometric information to the Central Identities Data Repository for the purpose of authentication.

2010 Bill: “Resident” was defined under clause 2(q) as an individual usually residing in a village, rural area, town, ward, demarcated area (demarcated by the Registrar General of Citizen Registration) within a ward in a town or urban area in India.
2016 Bill : “Resident” has been defined under clause 2(v) as an individual who has resided in India for a period or periods amounting in all to one hundred and eighty-two days or more in the twelve months immediately preceding the date of application for enrolment.

2010 Bill: “Review Committee” was defined under clause 2(r) as the Identification Review Committee constituted under the provisions of the Bill.
2016 Bill : “Review Committee” has not been defined under the Bill.

2010 Bill: “Service” was not defined in the previous Bill.
2016 Bill : “Service” has been defined under clause 2 (w) as any provision, facility, utility or any other assistance provided in any form to an individual or a group of individuals as may be notified by the Central Government.

2010 Bill: “Subsidy” was not defined in the previous Bill.
2016 Bill : “Subsidy” has been defined under clause 2(x) as any form of aid, support, grant, subvention, or appropriation (either in cash or kind), as may be notified by the Central Government, given to an individual or a group of individuals.

Enrolment

Aadhaar Numbers

2016 Bill : Under clause 3(2) of the Bill, it is stated that at the time of enrolment, The enrolling agency shall inform the individual undergoing enrolment the following details:

(a) the manner in which the information so collected shall be used,

(b) the nature of recipients with whom the information is intended to be shared during authentication,and

(c) the existence of a right to access information, the procedure for making such requests for access, and details of the person/department in-charge to whom such requests can be

made.

Properties of Aadhaar Number

2010 Bill : Clause 4 (3) stated that subject to authentication, the Aadhaar number shall be accepted as a proof of identity of the Aadhaar number holder.

2016 Bill : Clause 4 (3) states that subject to authentication, the Aadhaar number (either in physical or electronic form) shall be accepted as a proof of identity of the Aadhaar

number holder.

The Explanation under this clause states that for the purpose of this provision, “electronic form” shall have the same meaning as assigned to it in section 2 (1) (r) of the Information Technology Act, 2000.

Authentication

Proof of Aadhaar number necessary for receipt of certain subsidies, benefits and services, etc.

2016 Bill : Under clause 7 of the Bill it is provided that for the purpose of establishing an individual's identity as a condition to receipt a a subsidy, benefit or service. the Central or State Government (as the case may be), require that such individual undergo authentication, or furnish proof of possession of Aadhaar number. In case the Aadhaar number has not been assigned to an individual, such individual must make an application for enrolment.

The Proviso states that the individual shall be offered alternate and viable means of identification for delivery of the subsidy, benefit or service, in an Aadhaar number is not assigned to an individual.

Authentication of Aadhaar number

2010 Bill: Clause 5 of the Bill stated that authentication of the Aadhaar number shall be performed by the Authority, in relation to the holders’ biometric and demographic information, subject to such conditions and on payment of the prescribed fees. Also, it was provided that the Authority shall respond to an authentication query with a positive, negative or other appropriate response (excluding any demographic and biometric information).

2016 Bill : The Bill states that authentication of the Aadhaar number shall be performed by the Authority, in relation to the holders’ biometric and demographic information, subject to such conditions and on payment of the prescribed fees.

Clause 8 (2) provides that unless otherwise provided in the Act, the requesting entity shall—

For the purpose of authentication, obtain the consent of an individual before collecting his identity information, and
ensure that the identity information of an individual is only used for submission to the Central Identities Data Repository for authentication.

Clause 8 (3) provides that the following details shall be informed by the requesting entity to the individual submitting his identity information for the purpose of authentication:

a. the nature of information that may be shared upon authentication;

b. the uses to which the information received during authentication may be put by the requesting entity; and

c. alternatives to submission of identity information to the requesting entity.

Clause 8(4) states that the Authority shall respond to an authentication query with a positive, negative or other appropriate response (excluding any core biometric information).

Prohibition on requiring certain information.

2010 Bill: Clause 9 of the Bill prohibited the Authority to make an individual give information pertaining to his race, religion, caste, tribe, ethnicity, language, income or health.

2016 Bill : This provision has been removed from the 2016 Bill.

Unique Identification Authority Of India

Establishment of Authority

2010 Bill: Clause 11(1) of the Bill stated that the Central Government shall establish an Authority called as the National Identification Authority of India, to exercise the powers conferred on it and to perform the functions assigned to it under this Act. Also, clause 11(3) provided that the head office of the Authority shall be in the National Capital Region, referred to in section 2(f) of the National Capital Region Planning Board Act, 1985.

2016 Bill : Clause 11(1) of the Bill states that the Central Government shall establish an Authority called as the Unique Identification Authority of India, responsible for the processes of enrolment, authentication and perform such other functions assigned to it under this Act. Also, clause 11(3) provides that the head office of the Authority shall be in New Delhi.

Composition of Authority

2010 Bill: Clause 12 provided that the Authority shall consist of a Chairperson and two part-time Members, to be appointed by the Central Government.

2016 Bill : Clause 12 of the Bill provides that the Authority shall consist of a Chairperson (appointed on part-time or full- time basis) , two part-time Members, and the chief executive officer (who shall be Member-Secretary of the Authority), to be appointed by the Central Government.

Qualifications for appointment of Chairperson and Members of Authority

2010 Bill: Clause 13 provided that the Chairperson and Members of the Authority shall be persons of ability, integrity and outstanding calibre having experience and knowledge in the matters relating to technology, governance, law, development, economics, finance, management, public affairs or administration.

2016 Bill : Clause 13 provides that the Chairperson and Members of the Authority shall be persons of ability and integrity having experience and knowledge of at least ten years in matters relating to technology, governance, law, development, economics, finance, management, public affairs or administration.

Term of office and other conditions of service of Chairperson.

2010 Bill: Proviso to Clause 14 (1) stated that the Chairperson of the Unique Identification Authority of India, who would have been appointed before the commencement of this Act by notification A-43011/02/2009-Admn.I (Vol.II) dated the 2nd July, 2009, shall continue as a Chairperson of the Authority for the term for which he had been appointed. Clause 14(4) prohibited the Chairperson from holding any other office during the period of holding his office in the Authority. Proviso to clause 14 (5) stated the salary, allowances and the other terms and conditions of service of the Chairperson shall not be varied to his disadvantage after his appointment.

2016 Bill : These provisions have not been included in the Bill.

Removal of Chairperson and Members

2010 Bill: Clause 15 (2) stated that unless a reasonable opportunity of being heard has been duly provided, the Chairperson or a Member shall not be removed under clauses (d) or (e) of sub-section (1).

2016 Bill : Clause 15 (2) stated that unless a reasonable opportunity of being heard has been duly provided, the Chairperson or a Member shall not be removed under clauses (b), (d) or (e) of sub-section (1).

Restrictions on Chairperson or Members on employment after cessation of office

2010 Bill: Clause 16 (a) provided that the Chairperson or a member, who ceases to hold office, shall not accept any employment in, or connected with the management or administration of, any person which has been associated with any work under the Act, for a period of three years from the date on which they cease to hold office, without previous approval of the Central Government.

The proviso to this clause stated that this provision shall not apply to any employment under the Central Government, State Government, local authority, any statutory authority or any corporation established by or under any Central, State or provincial Act or a Government Company, as defined in section 617 of the Companies Act, 195.

2016 Bill: Clause 16 (a) provides that the Chairperson or a member, who ceases to hold office, shall not accept any employment in, or connected with the management of any organisation, company or any other entity which has been associated with any work done or contracted out by the Authority (whether directly or indirectly), during his tenure as Chairperson or Member, as the case may be, for a period of three years from the date on which he ceases to hold office, without previous approval of the Central Government.

Functions of Chairperson

2010 Bill: Clause 17 of the Bill provided that the Chairperson shall have powers of general superintendence, direction in the conduct of the affairs of the Authority, preside over the meetings of the Authority, and exercise and discharge such other powers and functions of the Authority as prescribed, without prejudice to any of the provisions of the Act.

2016 Bill : Clause 17 of the Bill states that the Chairperson shall preside over the meetings of the Authority, and exercise and discharge such other powers and functions of the Authority as prescribed, without prejudice to any of the provisions of the Act.

Chief Executive Officer

2010 Bill: Clause 20 (1) of the Bill stated that a chief executive officer, not below the rank of the Additional Secretary to the Government of India, who shall be the Member-Secretary of the Authority,shall be appointed by the Central Government.

2016 Bill : Clause 18 (1) stated that a chief executive officer, not below the rank of the Additional Secretary to the Government of India, shall be appointed by the Central Government. In the list of its responsibilities, clause 18 (2) (e) additionally provides for performing such other functions, or exercising such other powers, as may be specified by regulations.

Meetings

2010 Bill: Clause 18 (4) provided that all decisions of the Authority shall be authenticated by the signature of the Chairperson or any other Member who is authorised by the Authority for this purpose.

2016 Bill : Clause 19 (4) provided that all decisions of the Authority shall be signed by the Chairperson, any other Member or the Member-Secretary authorised by the Authority.

Vacancies, etc., not to invalidate proceedings of Authority

2010 Bill: Clause 19 (b) of the Bill stated that No act or proceeding of the Authority shall be invalid merely by reason of any defect in the appointment of a person as a Member of the Authority

2016 Bill : Clause 20 (b) of the Bill stated that No act or proceeding of the Authority shall be invalid merely by reason of any defect in the appointment of a person as Chairperson or Member of the Authority

Powers and functions of Authority

Clause 23 (2) (k)

2010 Bill: Clause 23 (2) (k) provided that the powers and functions of the Authority may include sharing the information of Aadhaar number holders, with their written consent, with such agencies engaged in delivery of public benefits and public services as the Authority may by order direct, in a manner as specified by regulations.

2016 Bill : Clause 23 (2) (k) provides that the powers and functions of the Authority may include sharing the information of Aadhaar number holders, subject to the provisions of this Act.

Clause 23 (2) (r)

2010 Bill : Clause 23 (2) (r) stated that the powers and functions of the Authority may include specifying, by regulation, the policies and practices for Registrars, enrolling agencies and other service providers.

2016 Bill : Clause 23 (2) (r) states that the powers and functions of the Authority may include evolving of, and specifying, by regulation, the policies and practices for Registrars, enrolling agencies and other service providers.

Grants, Accounts and Audit and Annual Report

2010 Bill: Clause 25 provided that the fees or revenue collected by the Authority shall be credited to the Consolidated Fund of India and the entire amount so credited be transferred to the Authority.

2016 Bill : Clause 25 states that the fees or revenue collected by the Authority shall be credited to the Consolidated Fund of India.

Identity Review Committee

2010 Bill: Clause 28 of the Bill provided for establishment of the Identity Review Committee, consisting of three members (including the chairperson) who are persons of eminence, ability, integrity and having knowledge and experience in the fields of technology, law, administration and governance, social service, journalism, management or social sciences. Clause 29 of the Bill enlisted several functions to be undertaken by the Review Committee so constituted.

2016 Bill: These provisions have been removed from the Bill.

Protection of Information

Security and confidentiality of information

2010 Bill: Clause 30 (2) of the Bill stated that the Authority shall take measures (including security safeguards) to ensure security and protection of information in possession/control of the Authority (including information stored in the Central Identities Data Repository), against any loss, unauthorised access, use or unauthorised disclosure of the same.

2016 Bill : Clause 28 (3) states that the Authority shall take measures to ensure security and protection of information in possession/control of the Authority (including information stored in the Central Identities Data Repository), against access, use or disclosure not permitted under this Act or regulations made thereunder, and against accidental or intentional destruction, loss or damage.

A new provision-clause 28(4)- states that the Authority shall undertake the following additional measures for protection of information:

(a) adopt and implement appropriate technical and organisational security measures,

(b) ensure that the agencies, consultants, advisors or other persons appointed or engaged for performing any function of the Authority under this Act, have in place appropriate technical and organisational security measures for the information, and

(c) ensure that the agreements or arrangements entered into with such agencies, consultants, advisors or other persons, impose obligations equivalent to those imposed on the Authority under this Act, and require such agencies, consultants, advisors and other persons to act only on instructions from the Authority.

Restriction on sharing information

2010 Bill: The Bill did not provide for restrictions on sharing of information.

2016 Bill: This new provision under Clause 29 states that no core biometric information, collected or created under this Act, shall be—

(a) shared with anyone for any reason whatsoever; or

(b) used for any purpose other than generation of Aadhaar numbers and authentication under this Act.

Also, the identity information, other than core biometric information, collected or created

under this Act may be shared only in accordance with the provisions of this Act as specified under Regulations.

Clause 29 (3) prohibits usage of identity information available with a requesting entity for any purpose, other than that specified to the individual at the time of submitting any identity information for authentication, or disclosed further, except with the prior consent of the individual to whom such information relates.

Clause 29 (4) prohibits publication, displaying or publicly posting of the Aadhaar number or core biometric information collected or created under this Act in respect of an Aadhaar number holder, except for the purposes as may prescribed in Law.

Biometric information deemed to be sensitive personal information.

2010 Bill: The Bill did not contain provisions stating that the biometric information shall be deemed to be sensitive personal information for the purpose of this Act.

2016 Bill: Clause 30 states that the biometric information collected and stored in electronic form shall be deemed to be “electronic record” and “sensitive personal data or information”, and the provisions contained in the Information Technology Act, 2000 and the rules made thereunder shall apply to such information,to the extent not in derogation of the provisions of this Act.

The Explanation defines

(a) “electronic form” - as defined under section 2 (1) (r) of the Information Technology Act, 2000,

(b) “electronic record” as defined under section 2 (1) (t) of the Information Technology Act, 2000

(c)“sensitive personal data or information” - as defined under clause (iii) of the

Explanation to section 43A of the Information Technology Act, 2000.

Security and confidentiality of information

A new provision-clause 28(4)- states that the Authority shall undertake the following additional measures for protection of information:

(a) adopt and implement appropriate technical and organisational security measures,

Alteration of demographic information or biometric information.

2016 Bill : Clause 31 (4) prohibits alteration of identity information in the Central Identities Data Repository, except in the manner provided in this Act or regulations made thereof.

Access to own information and records of requests for authentication.

2016 Bill : Clause 32 (3) provides that the Authority shall not collect, keep or maintain any information about the purpose of authentication, either by itself or through any entity under its control.

Disclosure of information in certain cases

2010 Bill: The provision creates an exception under Clause 33 for the purposes of disclosure of information in certain cases like disclosure (including identity information or details of authentication) made pursuant to an order of a competent court; or disclosure (including identity information) made in the interests of national security in pursuance of directions issued by an officer(s) not below the rank of Joint Secretary or equivalent in the Central Government specifically authorised in this behalf by an order of the Central Government.

2016 Bill : The provision creates an exception under Clause 33 for the purposes of disclosure of information in certain cases like disclosure (including identity information or details of authentication) made pursuant to an order not inferior to that of a District Judge (provided that the court order shall be made only after giving an opportunity of hearing to the Authority); or disclosure (including identity information or authentication records) made in the interests of national security in pursuance of directions issued by an officer not below the rank of Joint Secretary to the Government of India, authorised in this behalf by an order of the Central Government.

The proviso to Clause 33 (2) states that every direction so issued shall be reviewed by an Oversight Committee consisting of the Cabinet Secretary and the Secretaries to the Government of India in the Department of Legal Affairs and the Department of Electronics and Information Technology, before it takes effect.

The second proviso states that any such direction so issued shall be valid for a period of three months from the date of its issue, which may be extended for a further period of three months after the review by the Oversight Committee.

Offences and Penalties

Penalty for impersonation at time of enrolment.

2010 Bill: The penalty for impersonation was prescribed under Clause 34 as imprisonment for a term which may extend to three years and fine which may extend to ten thousand rupees.

2016 Bill : The penalty for impersonation was prescribed under Clause 34 as imprisonment for a term which may extend to three years, or with fine which may extend to ten thousand rupees, or both.

Penalty for unauthorised access to the Central Identities Data Repository

2010 Bill: Clause 38 (g) stated that any person not authorised by the Authority, provides any assistance to any person to do any of the acts mentioned under sub-clauses (a)-(f) shall be punishable. If anyone, who is not authorised by the Authority, performs any activity as listed under (a)-(i), shall be punishable with imprisonment for a term which may extend to three years and shall be liable to a fine which shall not be less than one crore rupees.

2016 Bill : Clause 38 (g) stated that any person not authorised by the Authority, reveals any information in contravention of sub-section section 28 (5), or shares, uses or displays information in contravention of section 29 or assists any person in any of the acts mentioned under sub-clauses (a)-(f) shall be punishable. If anyone, who is not authorised by the Authority, performs any activity as listed under (a)-(i), shall be punishable with imprisonment for a term which may extend to three years and shall be liable to a fine which shall not be less than ten lakh rupees. Additionally, the Explanation states that the expression “computer source code” shall have the meaning assigned to it in the Explanation to section 65 of the Information Technology Act, 2000.

Penalty for unauthorised use by requesting entity and noncompliance with intimation requirements

2010 Bill: Clause 40 of the Bill prescribed penalty for manipulating biometric information and stated that a person who gives/attempts to give any biometric information which does not pertain to him for the purpose of getting an Aadhaar number, authentication or updating his information, shall be punishable with imprisonment for a term which may extend to three years or with a fine which may extend to ten thousand rupees or with both.

2016 Bill: Clause 40 prescribes penalty for a person, being a requesting entity, uses the identity information of an individual in contravention of clause 8(3) , to be punishable with imprisonment which may extend to three years or with a fine which may extend to ten thousand rupees or, in the case of a company, with a fine which may extend to one lakh rupees or with both. Clause 41 of the Bill states that Whoever, being an enrolling agency or a requesting entity, fails to comply with the requirements of clause 3(2)-list of details to be informed to the individual undergoing enrolment, and clause 8(3)-informing individual undergoing enrolment details for the purpose of authentication, shall be punishable with imprisonment which may extend to one year, or with a fine which may extend to ten thousand rupees or, in the case of a company, with a fine which may extend to one lakh rupees or with both.

General Penalty

2010 Bill: For an offence committed under the Act or rules made thereunder, for which no specific penalty was provided, the penalty was prescribed as imprisonment for a term which may extend to three years, or fine as prescribed.

2016 Bill : For an offence committed under the Act or rules made thereunder, for which no specific penalty was provided, the penalty was prescribed as imprisonment for a term which may extend to one year, or fine as prescribed.

Miscellaneous

Power of Central Government to supersede Authority.

2010 Bill: Clause 47(1)(c) stated that if at any time the Central Government is of the opinion that such circumstances exist which render it necessary in the public interest to supersede the Authority, may do so in the manner prescribed under this provision.

2016 Bill : Clause 48(1)(c) states that if at any time the Central Government is of the opinion that a public emergency exists, then the Central Government may supersede the Authority, in the manner prescribed under this provision.

Power to remove difficulties.

2010 Bill: The proviso to Clause 56(1) stated that an no order by Central Government, which may appear necessary to remove a difficulty in giving effect to the provisions of this Act, shall be made under this section after the expiry of two years from the commencement of this Act.

2016 Bill : The proviso to Clause 58(1) stated that an no order by Central Government, which may appear necessary to remove a difficulty in giving effect to the provisions of this Act, shall be made under this section after the expiry of three years from the commencement of this Act.

Savings

2010 Bill: Clause 57 provided that any action taken by the Central Government under the Resolution of the Government of India, Planning Commission bearing notification number A-43011/02/ 2009-Admin.I, dated the 28th January, 2009, shall be deemed to have been done or taken under the corresponding provisions of this Act.

2016 Bill : Clause 59 states that any action take by Central Government under the Resolution of the Government of India, Planning Commission bearing notification number A-43011/02/2009-Admin. I, dated the 28th January, 2009, or by the Department of Electronics and Information Technology under the Cabinet Secretariat Notification bearing notification number S.O. 2492(E), dated the 12th September, 2015, as the case may be, shall be deemed to have been validly done or taken under this Act.

Statement of Objects and Reasons

2010 Bill: The Bill stated that the Central Government decided to issues unique identification numbers to all residents in India, which involves collection of demographic, as well as biometric information. The Unique Identification Authority of India was constituted as an executive body by the Government, vide its notification dated the 28th January, 2009. The Bill addressed and enlisted several issues with the issuance of unique identification numbers which should be addressed by law and attract penalties, such as security and confidentiality of information, imposition of obligation of disclosure of information so collected in certain cases, impersonation at the time of enrolment, unauthorised access to the Central Identities Data Repository, manipulation of biometric information, investigation of certain acts constituting offence, and unauthorised disclosure of the information collected for the purposes of issuance of the numbers. To make the said Authority a statutory one, the National Identification Authority of India Bill, 2010 was proposed to establish the National Identification Authority of India to issue identification numbers and authenticate the Aadhaar number to facilitate access to benefits and services to such individuals to which they are entitled and for matters connected therewith or incidental thereto.Apart from the above mentioned purposes, The National Identification Authority of India Bill, 2010 also seeks to provide for the Authority to exercise powers and discharge functions so prescribed , ensure that the Authority does not require any individual to give information pertaining to his race, religion, caste, tribe, ethnicity, language, income or health, may engage entities to establish and maintain the Central Identities Data Repository and to perform any other functions as may be specified by regulations, constitute the Identity Review Committee and take measures to ensure that the information in the possession or control of the Authority is secured and protected against any loss, unauthorised access or use or unauthorised disclosure thereof.

2016 Bill: The Bill states that correct identification of targeted beneficiaries for delivery of subsidies, services, frants, benefits, etc has become a challenge for the Government and has proved to be a major hindrance for successful implementation of these programmes. In the absence of a credible system to authenticate identity of beneficiaries, it is difficult to ensure that the subsidies, benefits and services reach to intended beneficiaries. The Unique Identification Authority of India was established by a resolution of the Government of India, Planning Commission vide notification number A-43011/02/ 2009-Admin.I, dated the 28th January, 2009, to lay down policies and implement the Unique Identification Scheme of the Government, by which residents of India were to be provided unique identity number. Upon successful authentication, this number would serve as proof of identity for identification of beneficiaries for transfer of benefits, subsidies, services and other purposes. With increased use of the Aadhaar number, steps to ensure security of such information need to be taken and offences pertaining to certain unlawful actions, created. It has been felt that the processes of enrolment, authentication, security, confidentiality and use of Aadhaar related information must be made statutory. For this purpose, the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 seeks to provide for issuance of Aadhaar numbers to individuals on providing his demographic and biometric information to the Unique Identification Authority of India, requiring Aadhaar numbers for identifying an individual for delivery of benefits, subsidies, and services, authentication of the Aadhaar number, establishment of the Unique Identification Authority of India, maintenance and updating the information of individuals in the Central Identities Data Repository, state measures pertaining to security, privacy and confidentiality of information in possession or control of the Authority including information stored in the Central Identities Data Repository and identify offences and penalties for contravention of relevant statutory provisions.

For more details visit https://cis-india.org/internet-governance/blog/a-comparison-of-the-2016-aadhaar-bill-and-the-2010-nidai-bill

Aadhaar: Still Too Many Problems

pranesh — 2016-04-06T15:31:32Z

While one wishes to welcome govt’s attempt to bring Aadhaar within a legislative framework, the fact is there are too many problems that still remain unaddressed for one to be optimistic.

The article was published by Livemint on March 7, 2016.

The Aadhaar Bill has been introduced as a money bill, even though it doesn’t qualify as such under Article 110 of the Constitution. If the Speaker agrees to this, it will render the Rajya Sabha toothless in this matter, and will weaken our democracy. The government should reintroduce it as an ordinary legislative bill, which is what it is.

While the government has in the past argued before the Supreme Court that Aadhaar is voluntary, Section 7 of the bill allows the government to mandate an Aadhaar number (or application for an Aadhaar number) as a prerequisite for obtaining some subsidies, benefits, services, etc. This undermines its arguments before the Supreme Court, which led the court to pass orders holding that Aadhaar should not be made mandatory. This move to make it mandatory will now need the government to argue that rather than contravene the apex court order, it has instead removed the rationale for it.

Interestingly, the Bharatiya Janata Party (BJP)-led National Democratic Alliance (NDA) government seems to have done a U-turn on the issue of the unique identification number not being proof of citizenship or domicile. The previous Congress-led United Progressive Alliance (UPA) government never meant the Aadhaar number to be proof of citizenship or domicile. This was attacked by the Yashwant Sinha-chaired standing committee on finance, which feared that illegal immigrants would get Aadhaar numbers. Now, the BJP and the NDA seem to be in agreement with the original UPA vision of Aadhaar.

Importantly, there is very strong language when it comes to the issue of privacy and confidentiality of the information that is held by the Unique Identification Authority of India (UIDAI). Section 29 (1), for instance, says that no biometric information will be shared for any reason whatsoever, or used for any purpose other than Aadhaar number generation and authentication. However, that provision is undermined wholly by Section 33, which says that “in the interest of national security”, the biometric info may be accessed if authorized by a joint secretary. This will only fan the fears of those who have argued that the real rationale for Aadhaar was not, in fact, delivery of services, but to create a national database of biometric data available to government snoops.

Also Read

Pros and cons of Aadhaar bill

Further, there are no remedies available for governmental abuse of this provision.

Lastly, in terms of privacy, the concern of those people who have been opposing Aadhaar is not just that the biometric and other identity information may be leaked to private parties, but also that having a unique Aadhaar number helps private parties to combine and use other databases that are linked with Aadhaar numbers in a manner that is not within the subject’s control. This is not at all addressed in this bill, and we need a robust data protection law in order to do that.

There are some other crucial details that the law doesn’t address: Is user consent, to be taken by third parties that use the UID database for authentication, needed for each instance of authentication, or would a general consent hold forever? How can consent be revoked?

There were many other objections that were raised against the Aadhaar scheme that have not been addressed by the government. For instance, in a recent article in the Economic and Political Weekly, Hans Varghese Mathews points out that going by the test data UIDAI made available in 2012, for a population of 1.3 billion people, the incidence of false positives—the probability of the identities of two people matching—is 1/112.

This is far too high a ratio to be acceptable.

Actual data from the field in Andhra Pradesh—of people who were unable to claim rations under the public distribution system (PDS)—paints a worse picture. A survey commissioned by the Andhra Pradesh government said 48% of respondents pointed to Aadhaar-related failures as the cause of their inability to claim rations.

So, even if the Aadhaar numbers were no longer issued to Lord Hanuman (Rajasthan), to dogs (e.g., Tommy Singh, a mutt in Madhya Pradesh), and with photos of a tree (New Delhi), it might not prove to be usable in a country of India’s size, given the capabilities of the fingerprint machines. As my colleague Sunil Abraham notes, the law cannot fix technological flaws.

So, while one wishes one could welcome the government’s attempt to bring Aadhaar within a legislative framework, the fact is there are too many problems that still remain unaddressed for one to be optimistic.

Pranesh Prakash is policy director at the Centre for Internet and Society, a think tank.

For more details visit https://cis-india.org/internet-governance/blog/livemint-march-7-2016-pranesh-prakash-aadhaar-still-too-many-problems

Flaws in the UIDAI Process

hans — 2016-03-06T10:40:59Z

The accuracy of biometric identification depends on the chance of a false positive: the probability that the identifiers of two persons will match. Individuals whose identifiers match might be termed duplicands. When very many people are to be identified success can be measured by the (low) proportion of duplicands. The Government of India is engaged upon biometrically identifying the entire population of India. An experiment performed at an early stage of the programme has allowed us to estimate the chance of a false positive: and from that to estimate the proportion of duplicands. For the current population of 1.2 billion the expected proportion of duplicands is 1/121, a ratio which is far too high.

The article was published in Economic & Political Weekly, Journal » Vol. 51, Issue No. 9, 27 Feb, 2016.

A legal challenge is being mounted in the Supreme Court, currently, to the programme of biometric identification that the Unique Identification Authority of India (UIDAI) is engaged upon: an identification preliminary and a requisite to providing citizens with “Aadhaar numbers” that can serve them as “unique identiﬁers” in their transactions with the state. What follows will recount an assessment of their chances of success. We shall be using data that was available to the UIDAI and shall employ only elementary ways of calculation. It should be recorded immediately that an earlier technical paper by the author (Mathews 2013) has been of some use to the plaintiffs, and reference will be made to that in due course.

The Aadhaar numbers themselves may or may not derive, in some way, from the biometrics in question; the question is not material here. For our purposes a biometric is a numerical representation of some organic feature: like the iris or the retina, for instance, or the inside of a ﬁnger, or the hand taken whole even. We shall consider them in some more detail later. The UIDAI is using ﬁngerprints and iris images to generate a combination of biometrics for each individual. This paper bears on the accuracy of the composite biometric identiﬁer. How well those composites will distinguish between individuals can be assessed, actually, using the results of an experiment conducted by the UIDAI itself in the very early stages of its operation; and our contention is that, from those results themselves, the UIDAI should have been able to estimate how many individuals would have their biometric identiﬁers matching those of some other person, under the best of circumstances even, when any good part of population has been identiﬁed.

Read the full article here.

The author thanks Nico Temme of the Centrum Wiskunde & Informatica in The Netherlands for the bounds he derived on the chance of a false positive. He is particularly grateful to the anonymous referee of this journal who, through two rounds of comment, has very much improved the presentation of the results. A technical supplement to this paper is placed on the EPW website along with this paper.

For more details visit https://cis-india.org/internet-governance/blog/epw-27-february-2016-hans-varghese-mathews-flaws-in-uidai-process

The Crypto Wars Are Global

praskrishna — 2016-04-01T16:06:30Z

The blog post by Joseph Cox was published by Motherboard on March 4, 2016

American politicians, media, and the public may be focused on the ongoing battle between Apple and the FBI over encryption in the iPhone, but the so-called Crypto Wars are far from just a national issue.

The proliferation of encryption—and law enforcement’s efforts to defeat it—is a wordwide phenomenon, and one that might have much more urgent consequences outside of Europe and the US.

On top of that, some governments’ reactions to the increased use of cryptography have been more kinetic and drastic.

This was starkly demonstrated with the arrest of a senior Facebook executive in Brazil on Tuesday, seemingly carried out because WhatsApp was unable to fulfill a court order to intercept messages on the service. That case was likely an exceptional one, but it was symptomatic of growing frustration amongst governments and law enforcement around the world.

Plenty of countries already seemingly target devices to circumvent encryption

So as foreign authorities clamp down on crypto in their own way, how will this affect users?

“Outside the US, the consequences for users, the risks, the threats that they face; the reasons they use crypto, are going to be much more pronounced,” Amie Stepanovich, US Policy Manager at Access Now, a digital rights group told Motherboard in a phone call.

For some users, Stepanovich said, “encryption really is a matter of life or death.” She pointed to LGBQT communities in the Middle East or North Africa, where their sexual preference might be illegal.

Various countries have taken wildly different approaches to tackling crypto. Late last year, the Kazakhstan government announced a plan to force all internet users to download a digital certificate that would allow the authorities to snoop on encrypted traffic. And in 2014, the Russian government called for researchers to find a way to crack the Tor anonymity network. Both of those plans have seemingly failed to materialise in any concrete results, but the intention was certainly there.

Others have looked at attacking devices of individuals, something that the FBI is also keen to develop.

“The future might be in the hacking of the device, hacking the end-point,” said Richard Tynan, a technologist at activist group Privacy International.

Indeed, plenty of countries already seemingly target devices to circumvent encryption. Italian surveillance company Hacking Team had at least 70 customers from all over the world, according to hacked internal documents.

The legislative approach has also been fairly popular. In December, China passed a law requiring technology firms to assist in the decryption of information.

This legal route parallels the current battle between Apple and the FBI, where the agency has asked the company to write code that would override the iPhone’s security features. Some feel that if the FBI is successfully in making the technology giant write malicious code, then a precedent will be set for other countries to follow.

“I think that if the US government is successful in ordering Apple to write code, we're going to see other countries also try to push Apple in the same direction,” Stepanovich said. (In its recent amicus brief in the Apple case, Intel wrote that if the FBI is successful in its demands, other countries, particularly those with less protective privacy laws, might see an invitation to require companies to undermine the security of their products.)

J. Carlos Lara, research and policy director from Derechos Digitales in Chile, said “There are many reasons to be following the debate, even if it does not appear to be directly about us, or about our country, because it might become one of the issues in our country at any point in the future.”

Carolina Botero, director of Fundación Karisma, a Colombian civil society organization, told Motherboard that she could imagine a situation similar there to that ongoing in the US if Apple does lose this fight.

“Colombia has a real need to fight against terrorists; there is a real national security issue here,” she said.

Others remained sceptical, saying that some countries may follow their own path, as they've already been doing.

“U.S. commentators greatly over-estimate the positive impact of U.S. self-imposed restrictions in national security matters on how foreign countries will act,” Pranesh Prakash, policy director at the Centre for Internet and Society in India, told Motherboard in an email.

Although it’s not a case strictly dealing with the same issues as Apple and the FBI, Prakash pointed to when the Indian government pressured BlackBerry to install a server in the country, so messages could be more easily intercepted.

“Though the U.S. government does not put restrictions on the encryption that may be deployed by telecom networks and ISPs, the Indian government does. And we aren't even talking about an 'authoritarian' government here, but the world's largest democracy,” he wrote.

The encryption debate is clearly not one limited to only the US, or even Europe. Rather, the spread of cryptography, and how governments respond to that, is likely an immediately more important issue elsewhere in the world.

“The global threat is much more serious,” than in the US, Stepanovich said.

For more details visit https://cis-india.org/internet-governance/news/motherboard-march-4-2016-joseph-cox-crypto-wars-are-global

Sean McDonald - Ebola: A Big Data Disaster

sumandro — 2016-04-21T09:57:26Z

We are proud to initiate the CIS Papers series with a fascinating exploration of humanitarian use of big data and its discontents by Sean McDonald, FrontlineSMS, in the context of utilisation of Call Detail Records for public health response during the Ebola crisis in Liberia. The paper highlights the absence of a dialogue around the significant legal risks posed by the collection, use, and international transfer of personally identifiable data and humanitarian information, and the grey areas around assumptions of public good. The paper calls for a critical discussion around the experimental nature of data modeling in emergency response due to mismanagement of information has been largely emphasized to protect the contours of human rights.

Read

Download the paper: PDF.

Preface

This study titled “Ebola: A Big Data Disaster” by Sean Martin McDonald, undertaken with support from the Open Society Foundation, Ford Foundation, and Media Democracy Fund, explores the use of Big Data in the form of Call Detail Record (CDR) data in humanitarian crisis.

It discusses the challenges of digital humanitarian coordination in health emergencies like the Ebola outbreak in West Africa, and the marked tension in the debate around experimentation with humanitarian technologies and the impact on privacy. McDonald’s research focuses on the two primary legal and human rights frameworks, privacy and property, to question the impact of unregulated use of CDR’s on human rights. It also highlights how the diffusion of data science to the realm of international development constitutes a genuine opportunity to bring powerful new tools to fight crisis and emergencies.

Analysing the risks of using CDRs to perform migration analysis and contact tracing without user consent, as well as the application of big data to disease surveillance is an important entry point into the debate around use of Big Data for development and humanitarian aid. The paper also raises crucial questions of legal significance about the access to information, the limitation of data sharing, and the concept of proportionality in privacy invasion in the public good. These issues hold great relevance in today's time where big data and its emerging role for development, involving its actual and potential uses as well as harms is under consideration across the world.

The paper highlights the absence of a dialogue around the significant legal risks posed by the collection, use, and international transfer of personally identifiable data and humanitarian information, and the grey areas around assumptions of public good. The paper calls for a critical discussion around the experimental nature of data modelling in emergency response due to mismanagement of information has been largely emphasized to protect the contours of human rights.

This study offers an important perspective for us at the Centre for Internet and Society, and our works on Privacy, Big Data, and Big Data for Development, and very productively articulates the risks of adopting solutions to issues important for development without taking into consideration legal implications and the larger impact on human rights. We look forward to continue to critically engage with issues raised by Big Data in the context of human rights and sustainable development, and bring together diverse perspectives on these issues.

- Elonnai Hickok, Policy Director, the Centre for Internet and Society

CIS Papers

The CIS Papers series publishes open access monographs and discussion pieces that critically contribute to the debates on digital technologies and society. It includes publication of new findings and observations, of work-in-progress, and of critical review of existing materials. These may be authored by researchers at or affiliated to CIS, by external researchers and practitioners, or by a group of discussants. CIS offers editorial support to the selected monographs and discussion pieces. The views expressed, however, are of the authors' alone.

For more details visit https://cis-india.org/papers/ebola-a-big-data-disaster

India's ‘Facebook ruling’ is another nail in the coffin of the MNO model

praskrishna — 2016-02-28T03:44:34Z

Ability to access 'net from mobe no longer considered a miracle.

The article was published in the Register on February 15, 2016. Pranesh Prakash gave inputs.

Nobody could accuse India’s telecoms regulator, TRAI, of being in the operators’ pockets. This month it has, once again, set eye-watering reserve prices for the upcoming 700 MHz spectrum auction (see separate item), and now it has taken one of the toughest stances in the world on net neutrality, in effect banning zero rated or discounted content deals like Reliance Communications’ Facebook Basics, or Bharti Airtel’s Zero.

In a ruling last Monday, TRAI said telecoms providers are banned from offering discriminatory tariffs for data services based on content, and from entering deals to subsidize access to certain websites. They have six months to wind down any existing arrangements which contravene the new rules. Its stance is even stricter than in other countries with strong pro-neutrality laws, such as Brazil and The Netherlands.

“This is the most extensive and stringent regulation on differential pricing anywhere in the world,” Pranesh Prakash, policy director at the Centre for Internet and Society, said. “Those who suggested regulation in place of complete ban have clearly lost.”

Such decisions, combined with high spectrum costs, will quickly make the traditional cellular business model unworkable in India, and the more that happens, the more wireless internet innovation will switch to open networks running on Wi-Fi and unlicensed spectrum. R.S. Sharma, chairman of TRAI, was careful to tell reporters that the zero rating ruling would not affect any plans to offer free Wi-Fi services, like those planned by Google in a venture with Indian Railways.

A disaster for MNOs, not Facebook

Facebook pronounced itself “disappointed” at TRAI’s ruling, having lobbied aggressively for a more flexible approach since RCOM was forced to suspend the Basics offering in December while the consultation process took place. But while the ruling bars the Basics offering – which provided free, low speed access, on RCOM’s network, to a selection of websites, curated by Facebook – it does not stop the social media giant pursuing other initiatives within its internet.org umbrella. These include projects to extend access using its own networks, powered by drones and unlicensed spectrum, to the unserved of India and other emerging economies.

So while the TRAI decision may be a setback for Facebook, it is not the body blow that it represents for the MNOs with their huge debt loads and infrastructure costs, and low ARPUs. Facebook, with 130m users in India, has a comparable reach to the Indian MNOs (only three, Bharti Airtel, Vodafone and Idea, have more subscribers than Facebook has users), and is better skilled at monetizing those consumers.

The challenge for companies like Facebook is that strict neutrality rules reduce their ability to harness others’ networks in order to reach out to new users. There are about 240m people in India who are online, but don’t use Facebook, and about 800m who are not connected, so the growth potential is far larger than in the other 37 countries where Basics is offered, such as Kenya or Zambia (Facebook is blocked in China). Using RCOM’s network and marketing activities was a far cheaper way to reach some of those people than launching drones, but Facebook has other options too, including its existing efforts to make its services more usable on very basic handsets and connections; the ability to leverage the WhatsApp brand; and partnerships with Wi-Fi providers.

The drones may have less immediate results than Basics, but they are a high profile example of an ongoing shift towards open networks, which has been going on for years, driven more by Wi-Fi proliferation than neutrality laws. The latter will be an accelerant, however.

All internet will be free, not zero rated

Currently, zero rating is an increasingly popular tactic to lure users with an apparently cheap deal and then, hopefully, see them upgrade to richer data plans, or spend money on m-commerce and premium content, in future. Zero rating involves allowing users access to selected websites and services without it affecting their data caps or allowances.

The US regulator has so far tolerated the practice, but the debate is raging, there and elsewhere, over whether it infringes neutrality laws, by offering different pricing for different internet services. If other authorities take the stance adopted by TRAI in India, operators will have to find new ways to attract customers and differentiate themselves.

Increasingly, access to a truly open internet will be the baseline, and priced extremely low. That low pricing will be made commercially viable by rising use of Wi-Fi to reduce cost of data delivery, whether for MNOs, wireline providers or web players like Google and Facebook, which are moving into access provision. Providers, whether traditional or new, will have to stop regarding access to the internet as a premium service or a privilege – it will be more akin to connecting someone to the electricity grid, just the base enabler of the real revenue model.

Just as it’s only when users plug something into that grid that they start to pay fees, so the operators will charge for higher value offerings which ride on top of the internet – premium content, enterprise services, cloud storage, freemium applications and so on.

The mobile operators have not embraced these ideas willingly. For years, the ability to access the internet from a mobile device was regarded as a value-add, almost a miracle. Now that the wireless network is often the primary access method, they need to change their ideas and be more like the smarter cablecos – which have tacked internet access onto a model driven by paid-for content and services – or the web giants, which have worked out ways to monetize ‘free’ access, from advertising to big data.

This, of course, is one of the goals of internet.org and Google’s similar initiatives involving drones, white space spectrum and satellites. The more users are able to access the internet, preferably for free, and the more they see Google or Facebook as their primary conduits to the web, the more data these companies have to feed into their deep learning platforms, their context aware services and their advertising and big data engines.

So while critics of TRAI said the zero rating decision was a setback to the goal of getting internet access into the hands of the huge underserved population of India, that population is too large and potentially rich for Facebook and its rivals to give up at the first hurdle.

Facebook CEO Mark Zuckerberg wrote in a blog post: "While we're disappointed with today's decision, I want to personally communicate that we are committed to keep working to break down barriers to connectivity in India and around the world. Internet.org has many initiatives, and we will keep working until everyone has access to the internet."

For more details visit https://cis-india.org/telecom/news/the-register-february-15-2016-india-facebook-ruling-is-another-nail-in-coffin-of-mno-model